Clark v. Ford

Moran, P. J. ' Appellee filed her declaration alleging a leasing of certain premises to one Sarah A. Grant, at a certain specified rent, a written guaranty of the rent by appellant, possession of the premises under the lease by said Grant, and a failure by her to pay the rent, and notice of such default to appellant. On the trial, when the lease was offered in evidence, it appeared from it that appellee agreed to make certain repairs.

Appellant contends that there could be no recovery because there was no allegation or proof that appellee had performed said covenants to repair. The covenant to pay rent was not'a dependent covenant, and it was wholly unnecessary to prove performance of covenants made by appellee in order to entitle her to recover rent. Failure on her part to repair was a matter of defense, and damages for such failure might be recouped from the rent, but there was no attempt to prove such damages.

The declaration does not set out the lease, in its terms or its legal effect. The copy of the lease attached to the declaration is the same in its terms as the one offered in evidence. There is therefore no variance.

The fact that the judgment slightly exceeds in amount the claim set out in the bill of particulars can not avail appellant. The action is on the written guaranty; no bill of particulars was necessary, and the bill filed was surplusage.

' The amount of the recovery is within the ad damnum. There is no error and the judgment must be affirmed.

Judgment affirmed.