
    James Whiteside, Respondent, v. Charles E. Connolly, Appellant.
    (Supreme Court, Appellate Term,
    July, 1897.)
    Damages — Proof — Destruction by claimant of evidence.
    A counterclaim, interposed by a lessee to an action brought against him by his surety upon a lease, in substance, that he was induced td take the lease by the false representations of the surety that a number of guests had engaged rooms in the premises for the summer season, cannot be established by evidence of the lessee that, if the engagements, stated by the surety to have been made, had been made, he would have come out “ a little ahead,” as proof of damage- cannot be shown by mere conclusions; and damages are properly refused where it appears that the lessee cut out of the register book of the premises the leaves which contained the names of guests during July and August, and thus destroyed the legal evidence of a part of the business transacted during the summer season.
    Appeal from an affirmance by the General -Term of the City Court of a judgment of the Trial Term in favor of plaintiff, entered upon the verdict of a jury for $493.50, besides costs. The action was by a surety upon a lease to recover from the lessee the amount of rent paid as surety. The defense was that the plaintiff became surety without any request of defendant or knowledge on the part of the latter. There was also a counterclaim.
    James P. Campbell, for appellant.
    E. L. Collier (Hudspeth & Collier, of counsel), for respondent.
   Daly, P. J.

The plaintiff executed to Mrs. Ellert, the landlord of the Avondale Hotel at Rockaway Beach, an agreement as surety for the defendant as lessee of the hotel, and, having paid a quarter’s rent to the landlord upon the tenant’s default, brings this action to recover it from the latter, who contended that the plaintiff did not become surety at his request, nor for his benefit, but for plaintiff’s benefit exclusively. That question was fairly submitted to the jury, but they found against the defendant, and the facts supported the verdict. Taking the defendant’s own version of the transaction, with the undisputed facts, it appears that the plaintiff and his wife were originally the lessees of the hotel and had arranged to sell out to the defendant and assign the lease • to him for $300. To the assignment the consent of the landlord, was necessary and was refused, she proposing, however, to cancel the old lease and make a new one to defendant. When the new lease was about to be executed, the landlord’s agent, Mr. Davison, required security, and the following ensued, as testified by defendant: “ Mr.'Davison then said, ‘ Mr. Connolly, you will give me security for the rent due on the 1st of August; ’ and I said, ‘ Eo, sir; I wont offer anybody as security. I wont ask anybody to' go on a lease as security for me for any amount.’ Mr. Davison then said, ‘ Mr. Whiteside why don’t you go security here — why don’t you go security on this lease; ’ and Mr. Whiteside demurred and said he did not expect it would be asked of him. Mr. Whiteside asked me if I could not give security and I told him no. I would not give him or anybody else security on a lease; and Mr. Davison said to Mr. Whiteside, ‘ Why don’t you go' security; ’ and Mr. Whiteside demurred and said he did not care to do it, and Mr. Davison then said, ‘ If I cannot have security on this lease then I will refuse to release your wife; ’ and I said, ‘ Then, gentlemen, that settles it,’ and I walked out. I went out and they talked two or three minutes, and I turned around, and Mr. Davison said, ‘Mr, Connolly, this is all right; sign this lease;'’ and I took and-signed it — the two leases. I signed the lease; I put it in my pocket, and drew a check for the amount of money -—for $500 to Mrs. Ellert and $300 to Mr. Whiteside.’ ” Defendant also stated that he did not know of the guaranty being written on the lease, and that it was not signed in his presence.

The lease to defendant was for four, years and six months from June 29, 1896, and the rent, from that date to the ensuing 1st of January, which alone was guaranteed by plaintiff, was to be $1,000, half payable on the execution of the lease, and half on August 1st. The $500 check to Mrs. Ellert was for the first installment, and the' plaintiff having had to pay that falling due August 1st,- the tenant refusing to pay it, this action is to recover that amount.

Upon .defendant’s own testimony, it was a fair question for the jury, in view of all the circumstances, whether defendant, although declining to expressly request, plaintiff to become surety, was not willing to accept the benefit of plaintiff’s becoming surety, if the-landlord could induce him to assume that obligation. ' Defendant’s saying, “That settles it#” when the landlord refused to release Mrs. Whiteside, unless he got security, and then' going outside, leaving the plaintiff' and Davison to come to an agreement, and then returning and signing the lease, when told by the latter that it was all right, afforded ground for the inference that he consented to plaintiff’s becoming surety and was willing to accept the benefit of it. He could have refused to sign if a surety were exacted, and his not doing so, and his failure to inquire what arrangement plaintiff and Davison had come to when the circumstances led to the inference that plaintiff had agreed to be surety, and his then signing the lease are strong indications of his assent; not to mention that according to the testimony of Davison and Whiteside the latter signed as surety while he stood by afterward, and made no comment nor protest.

There was a defense and counterclaim which the court refused to leave to the jury, and error is claimed in that regard. Defendant testified that he was induced to take the lease by plaintiff’s false representation that a number of guests had engaged rooms for the season, and that .he was referred by plaintiff to his clerk, Mr. Bennett, who stated that about half the house was engaged, twelve or thirteen rooms; and that as subsequently transpired with one exception, none of the persons so represented as having engaged rooms had done so.

Defendant testified that if these engagements had been made he would have come out a little ahead; that he lost' $900 in the hotel; but this, was stricken out against his objection. He was not allowed to state whether he would have made any money if there had been the engagements plaintiff told him about. This testimony was of mere conclusions of the witness and was properly stricken out. The defendant did not offer to show that those guests would have paid, nor whether the rooms they were said to have engaged were let for less, nor what his expenses were, and the court properly instructed the jury that there was no evidence upon which they could find a verdict in dollars and cents. The defendant asked for an instruction that he was entitled to recover back the $300 paid on the signing of the lease if the representations were false. This was properly denied because there was no competent proof that he had been damaged to that extent. He remained in possession of the hotel all summer and had the means of showing what he lost and whether he lost it by the absence of guests who, as plaintiff represented, had engaged for the season, and yet he did not attempt to do so. The register-book of the hotel kept by plaintiff- was produced by him, and it appeared that the leaves containing the names of guests during July and August had been cut out by defendant when he left the book on the premises, and the leaves were not produced. This was not a case, therefore, in which the defendant could give no better evidence of damage than he offered, but he had the means of satisfying the jury with reasonable certainty as to the extent of his loss, but did not avail himself of them.

Judgment affirmed, with costs.

McAdam and Bischoff, JJ., concur.

Judgment affirmed, with costs.  