
    Thomas N. Gadsden vs. T. L. Quackenbush.
    Plaintiff leased to J. B. a dwelling-house for one year, at a certain rent, payable quarterly, and it was stipulated that J. B., before the expiration of the term, should give one quarter’s notice of his intention to quit. Defendant by separate instrument, guaranteed the performance of the covenants by J. B. and the payment of the rent. ff. B. gave no notice of his intention to quit, and held over :— Held, that defendant was not liable upon his guarantee for rent due by J. B. for his possession after the expiration of the year.
    IN THE CITY COURT OF CHARLESTON, MAY TERM, 1855.
    The report of Ms Honor, the Recorder, is as follows: — ■
    “ This was an action of covenant against defendant upon his written guaranty, under seal, of the performance of certain covenants contained in a lease from the plaintiff to one James Burke.' For the more clear understanding of the question raised on the argument of the ease, and the decision made by the Court, I annex a copy of the lease itself, and of the defendant’s guaranty on the back of the same.
    
      “‘State of South Carolina.
    
    This Indenture, made the sixth day of July, Anno Do-mini, one thousand eight hundred and fifty-three, between Thomas N. Gadsden of the first part, and James Burke, the lessee, of the second part, Witnesseth, that the said Thomas N. Gadsden hath granted, bargained, and leased, and by these presents doth grant, bargain and lease unto the said James Burke, all that two and a half story wooden dwelling-house, situated on the North side of Queen street, nearly opposite Friend street, in the City of Charleston.
    To Have and to Hold the said above described premises, with the appurtenances, unto the said James Burke, his heirs, executors, administrators, and assigns, for the term of one year from the date hereof; yielding and paying therefor the quarterly sum of one hundred and twenty-five dollars, the first quarter ending on the sixth day of October, Anno Domini, one thousand eight hundred and fifty-three; And the said James Burke, his heirs, executors, and administrators, doth hereby covenant and agree, to and with the said Thomas N. Gadsden, well and truly to pay the above reserved and stipulated rent, at the time above limited; and also the same sum or rent on the day next after the day on which every subsequent quarter shall end. And it is further stipulated, that before the expiration of the term for which the said premises are leased, the said tenant shall give one quarter’s notice of his intention to vacate the aforesaid premises. And it is further stipulated and understood, by and between all the parties to these presents, that if it should so happen-that one quarter’s rent shall at any time be in arrear and unpaid, then the above-mentioned term shall immediately cease and determine; and it shall be lawful for the party of the first part to re-enter into and forthwith repossess all and singular the above granted and leased premises. And it is lastly stipulated, that the said James Burke shall not, without the consent of the lessor, convey this lease, or let the said premises to any other person; and shall leave the same in like good order, unavoidable accidents and ordinary wear and tear excepted.
    his
    JAMES ¡x! BURKE. [seal.]
    mark.
    THOMAS N. GADSDEN, .[seal.]’
    Signed, sealed, and delivered,
    in presence of
    John B. McClure, .
    C. C. Cambridge.
    “ On the back of the lease is endorsed the following—
    
      “ ‘ State of South Garolina, Charleston District.
    
    Eor value received, I hereby guarantee the faithful performance of the covenants within contained on the part of James Burke; also the punctual payment of the within stipulated rent at the times it falls due, unto Thomas N. Gadsden, his heirs, executors, administrators, or assigns. Witness my hand and seal, this sixth day of July, A. D. 1853.
    T. L. QUACKENBUSH. [seal.]’
    Witness, J. B. McClure.
    T. McNamara.
    “ If it were not for encumbering the case by too much and perhaps unnecessary matter, I would here subjoin a copy of the plaintiff’s declaration in full. But being a part of the record, the Court will refer to it, if required.
    “ The defendant filed a general demurrer, in which the plaintiff joined issue, and the case was argued before me upon the pleadings. I sustained the demurrer, and the plaintiff has appealed. It will be perceived, upon looking over the declaration, that the plaintiff’s cause of complaint or action against the defendant upon his guaranty, is the non-payment of rent by Burke the lessee for a portion of a second year, after the original term of one year, as stipulated in the lease, had ended. In this connection, it may„ be proper to call attention to the bill of particulars filed with the declaration, which is as follows :—
    ‘James Burke, To T. N. Gadsden, Dr.
    1854, July 6, To one quarter’s rent due 6th October,
    1854,........$125 00
    October 6, To two months and fourteen days rent to 20th December, 1854, . . . 102 73-
    $227 73’
    “ It will be seen clearly that all the allegations in the declarations are intended to show the liability of the defendant upon his guaranty, (which was for one year,) to extend to an occupation of the tenant, by permission of his landlord, for another and ensuing year. This point is too clear against the plaintiff, and has been so decided. It was argued that the plaintiff would have a good cause of action against the defendant, (the guarantor,) upon that special covenant in the lease, ‘that before the expiration of the term (one year) for which the premises, were leased, the tenant should give one quarter’s notice of his intention to vacate the premises.’ This is alleged by the plaintiff not to have been done by the lessee — but the plaintiff alleges no damages to have resulted specially from this breach of the covenant, as for instance the loss of hiring the premises to another tenant by reason thereof. On the contrary, the plaintiff shows that by his implied consent, or by implication of law, the lessee was allowed to hold over into another year, which was in fact a renewal of the lease as between himself and the lessee, and the lessee thereby became liable for the entire year’s rent for the second year. But not so as to the guarantor — as far as the payment of rent was concerned, it is clear the guarantor incurred by his contract no further liability in behalf of. the lessee, than for the stipulated term. I do not think more need be said to present clearly to the Court of Appeals the true question involved, and the grounds of my decision.”
    The plaintiff appealed on the grounds :
    1. Because the defendant, by his guarantee, covenanted for the faithful performance, on the part of the tenant, of all the' covenants contained in the lease.
    2. Because the tenant, failing to give three months notice of his intention to quit at the expiration of the term, was in for another year: and so being tenant from year to year, could not be ousted without three months notice from the landlord, before the end of the succeeding year.
    3. Because the breach of covenant happened within the term, and the liability of the tenant and his guarantor for subsequent rent, was a necessary consequence thereof.
    
      4. Because the guarantee of the defendant was a general guarantee of the lease, and of such consequences as would follow a breach of any of its covenants — and was such a guarantee as would subsist and continue at least for the succeeding year.
    5. Because, it is respectfully submitted, his Honor erred in sustaining the demurrer.
    
      JE. Be Treville, for appellant.
    
      Northrop, contra.
   The opinion of the Court was delivered by

Whither, J.

The defendant’s liability depends on a proper construction of the covenant, the faithful performance of which he has undertaken to guarantee. By its terms it was not a lease from year to year, but as expressed “for the term of one year, from the date hereof.” The term is not enlarged by the stipulation “ that before the expiration of the term for which the said premises are leased, the said tenant shall give one quarter’s notice of his intention to vacate the aforesaid premises.”

Though a very prudent precaution on the part of the landlord to be thus early advertised, that he might not rely on any renewal of the contract and secure another tenant, it does not at all follow that the tenant thereby secured the right to enjoy for a future term. So, too, the question of damage, if any had been sustained for default of notice, is outside of any questions now raised.

The terms of the guarantee are specific and manifest. “ For value received, I hereby guarantee the faithful performance of the covenants within contained on the part of James Burke; also the punctual payment of the within stipulated rent at the times it falls due.” After the expiration of the term, the tenant continued in possession without objection, and this suit is brought to recover of the guarantor rent alleged to be due for this further enjoyment of the premises. It is clear that the mere liability of the tenant is not sufficient to fix a continuing liability of the guarantor, because in fact, the former does not depend alone upon any covenant into which he had entered.

The circumstances imply consent of both the original parties to a renewal of the contract. The law implies from this subsequent conduct a new contract on like terms with the preceding. To this the guarantor was neither in fact, nor in law, a party. It was a new transaction, and a new credit was given outside, and beyond any previous stipulation, and the plaintiff can look alone to him with whom he dealt.

The demurer was properly sustained by the Recorder, and the motion of plaintiff is consequently refused.

O’Neall, Withers, Glover and Muero, JJ., concurred.

Wardlaw, J., absent.

Motion refused,  