Ruffin

The appeal is from the judgment and order denying a new trial. There is no controversy as to the facts, the construction of a certain written instrument being determinative of the merits of the case. The action was brought against Becker as lessee and Lilienthal as guarantor or surety for the recovery of the sum of two thousand one hundred dollars for rent of certain premises on Geary Street in San Francisco. As stated above, there is no dispute as to the terms of the lease, the amount due thereunder or that appellant Lilienthal guaranteed the payment of the rent. There are only two grounds upon which appellant relies for a reversal: 1. That a certain executory contract of sale dated April 29, 1908, operated as a release of the guarantor from all obligations created by said lease; and, 2. That the court erred in overruling appellant’s objections to certain questions asked of the plaintiff—the only witness examined at the trial.

The said instrument of April 29, 1908, which appellant claims to have effaced his liability under the lease, was as follows: “This Agreement, made this 29th day of April, 1908, between David T. Ruffin of San Francisco, California, first party, and E. R.…