
    The Cuyahoga Improvement Co. et al. v. Moore.
    (Decided December 23, 1929.)
    
      Messrs. Gentsch & Lang, for plaintiffs in error.
    
      Mr. Ben H. Davis, for defendant in error.
   Sherick, J.

Five cases under above title were by agreement of counsel consolidated in the court of common pleas and tried as one case. Error is prosecuted in each action to this court, and they are heard as one case in this court. The parties stand in a transposed position in this court, Wilnetta B. Moore being plaintiff in the lower court. The facts of the case are as follows:

On the 18th day of December, 1924, Wilnetta B. Moore leased certain property to the Cuyahoga Improvement Company, one of the defendants herein, on a ninety-nine year lease, which was duly recorded. At the same time the Maryland Casualty Company, the other defendant herein, became surety for payment of the rent on a bond of the improvement company, given to the lessor, conditioned in accordance with the terms of the lease, and in the principal sum of ten thousand dollars. The lease provided that the rentals were to be paid in quarterly installments on the first day of January, April, July and October of each year. On the first day of April, 1927, the improvement company defaulted in payment of the quarterly rent then due, and on the 21st of that month it notified the lessor in writing that it was abandoning the premises and surrendering its lease. The lessor promptly notified the lessee that it would be held accountable for the payment of rent. The lease further provided that the bond was to* secure the rentals on a certain building located upon the premises which* was thereafter to be wrecked by the lessee and a new building erected thereon. The building on the premises was not torn down and a new one was not erected.

On the last day of the quarter, which Was June 30, 1927, an action wqs begun by the lessor qs against the lessee and the surety company for rent, and all other sums due were the amount of certain taxes and the cost of insurance, which, by the terms of the lease, should have been paid by the lessee, and which, by the lessee’s abandonment, the lessor was compelled to pay.

The bond of the casualty company was to the effect that its principal was to pay all rent, taxes, and other charges, and that in the case of any default the surety with thirty days notice thereof bound itself to pay.

There is no question in any of these cases that the surety company was not properly notified, as provided by the covenant of the bond. The action begun on June 30, 1927, was uncontested, and a default judgment was entered in the court of common pleas of Cuyahoga county, which judgment was thereafter paid.

The five suits before this court are each of like tenor and effect, and are suits for successive quarterly installments of rentals under the terms of the lease.

It has developed that the improvement company is now insolvent. Both compames, however, answered to this action, and the question here involved is raised by the answer of the defendant casualty company and the plaintiff’s reply thereto.

It is contended by the indemnifying company that the prior action brought by the plaintiff as against the two companies is a bar to plaintiff’s claims now before this court in these five cases, by reason of the fact that the contract existing between the parties was fully and completely breached on the 21st day of April, 1927; that the lessor had no right in law to split her cause or causes of action; and that she was bound under the law to state her full claim as against these defendants in the action in which default was rendered.

We are not able to appreciate the contention of the plaintiff in error in these cases, for we believe that in this particular it is well settled in this state that the actions of the plaintiff lessor were perfectly proper under the prior authorities in this state.

The case of Strangward v. American Brass Bedstead Co., 82 Ohio St., 121, 91 N. E., 988, expressly holds that a recovery for monthly installments of rent — that being all that was due at the time the action was commenced, and such being so in the action upon which default was had — is not a bar to recovery for the future installments subsequently coming due under the terms of the lease.

This case has recently been approved and followed in two cases arising in this county, one being that of Yerman v. Boccia, 6 Ohio Law Abs., 218, and the other being the case of Gusman v. Mathews, 29 Ohio App., 402, 163 N. E., 636. This last case was considered by the Supreme Court of this state upon a motion to certify, and on June 20, 1928, the motion to certify was overruled.

We, therefore, recognize that the Supreme Court approves of the Strangward case and the doctrine therein announced, and such is now the law of Ohio. The Gusman case is directly in point with the case at bar, and there is but one feature in the case before this court which does not seem to have been at issue therein.

The companies strongly insist that the fact that the lessor in the suit upon which default was entered sued for the recovery of taxes then due and by her paid, and for the cost of insurance which the lessor was compelled to take out for the protection of her property, precludes the plaintiff lessor, because other and further sums than rent were sued for. We see no merit in this contention. The lease explicitly provides that the quarterly installments should not only be paid at the time specified, but that the lessee should pay the taxes and keep the property insured, which were just as essential to be paid as were the quarterly installments of rentals, and from the noted provisions of the bond in question in this instance the casualty company covenanted that these very things would be done by the lessee.

Finding no other error in the record it is the judgment of this court, therefore, that the judgment of the trial court in each of the five cases herein consolidated be and the same is hereby affirmed.

Judgment affirmed.

Lemert, J., concurs.

Judges Sherick and Lemert, of the Fifth Appellate District, sitting by designation in the Eighth Appellate District.  