Taking the covenant in the lease by itself, there might be doubt whether Wynkoop & Hallenbeck’s obligation to give a renewal was not conditioned upon their obtaining one from the owners. The action, however, is not brought upon this covenant, but upon the bond. The latter contains an absolute agreement to give the renewal or pay the penalty, and in view of this fact it is somewhat difficult to see the force of the contention that the obligation is conditional. Having thus agreed absolutely to give the renewal upon the same terms as before, they necessarily took the risk of obtaining themselves such further lease as would enable them to perform. Their absolute agreement imported that they would secure the means of compliance. Either that, or that they would pay the penalty.
The most that can be claimed by the respondents is that the lease and bond should be construed together. So construed, there is no ambiguity. The bond merely dispels any doubt left by the lease, and shows that the liability assumed was absolute. Thus it either clarifies the understanding contemplated by the lease, or else it superadds a liability not imposed thereby. There is no alternative. The lease certainly does not qualify the engagement explicitly set out in the bond.
In this view the action or non-action of Wynkoop & Hallenbeck becomes immaterial. If they did not get the renewal for whatever reason, they became liable upon the bond. In fact, if their agreement was conditional, I do not see how they could be held liable merely because they admitted to the plaintiff their inability to get a renewal from the owners upon the same terms. Bad faith or laches might make them liable, although the agreement was conditional, but there is no such claim. They tried honestly to get the renewal at the same rental, and failed. As stated, however, I think that their obligation was absolute.
I should add that the action of the plaintiff in taking a lease direct from the owner was not a defense to the defendants’ failure to ful*530fill their absolute obligation. The plaintiff did not take this independent step until Wynkoop & Hallenbeck had explicitly refused to furnish the renewal except at the increased rental. This refusal was a breach of the bond, and the plaintiff’s cause of action thereunder accrued at once. The plaintiff had a perfect right thereafter to protect itself by negotiations with the owner. That was an independent act which in no wise affected its then accrued cause of action. I concur, therefore, in the result arrived at by Mr. Justice Patterson.
The special defense set up in behalf of the defendant executrix was plainly insufficient. In addition to the fact that it was not pleaded, the amendment to section 758 of the Code of Civil Procedure, made in 1877 (Chap. 416, Laws of 1877), abrogates the old rule holding that the death of a joint obligor discharges his liability.
McLaughlin, J., concurred.