255 P. 254 | Cal. Ct. App. | 1927
Action on a promissory note given for the sum of $5,600. The case was tried without a jury. The findings in effect determined that the defenses interposed were true and judgment followed in favor of defendants.
At the opening of the trial plaintiff moved for judgment on the pleadings. The motion was denied. Appellant here claims, first, that the lower court erred in its denial of the motion for the reason that all the allegations of plaintiff's complaint were admitted and the affirmative defenses relied upon in the answer were legally insufficient to base any judgment in favor of defendants. Appellant's next and main contention is that the evidence is insufficient to support the findings. We will discuss the objections in the order stated. The complaint alleges, in substance, that defendants executed and delivered their promissory note for the sum of $5,600, with interest at the rate of seven per cent per annum. The note itself is not set forth in the pleadings. It then recites that no part of said note has been paid except the sum of $3,950.01, and that there is now due, owing, and unpaid, with interest, the sum of $1,812.30, for which sum judgment is prayed. The answer is by way of confession and avoidance. The due execution of the instrument is admitted, but under two affirmative defenses it is prayed that plaintiff take nothing by its action. Under the first defense the claim is made that the makers were mere guarantors and were exonerated by the acts of the plaintiff. Under the second, it is asserted that the instrument sued on was without any consideration whatsoever. The allegations of the answer in support of the first affirmative defense set forth in substance that the note was given to guarantee the payment of three other separate promissory notes made by certain principal debtors named Bidart, Wittman, and Castro, and executed by said persons to plaintiff. That the Bidart and Wittman notes were paid by defendants, and demand was made by them in August, 1922, for the surrender of the Castro note, together with an offer by them to pay the same in full, but plaintiff informed defendants *243
that the note was lost; that in truth and in fact it was not lost, but had been extended by the execution of a new note, which prolonged the time of payment thereof for a period of two years contrary to the consent of defendants and without their knowledge. It is then alleged that at the time the new note was executed and received by plaintiff, the original note was due and payable and could have been collected. Further allegations are to the effect that the new note was not due and payable at the time of the commencement of this action; that recourse against defendants was not reserved by plaintiff, and that no attempt had been made by it to collect the indebtedness from Castro. The second affirmative defense merely recited that the note sued upon was given without any consideration whatsoever. [1] It was the contention of plaintiff in support of its motion for judgment on the pleadings that the first plea of defendants was an attempt to plead matters which could not be proved without a violation of the so-called parol evidence rule and that under the second affirmative defense the form of denial constituted nothing more than the conclusion of the pleader. We do not consider there is any merit in these contentions. Aside from any question of the doctrines of aider or cure of pleadings by verdict, findings, or judgment, or cure by the right of amendment to conform to proof, whether such right be exercised or not, we are of the opinion that the allegations were sufficient to raise the pleas of exoneration and lack of consideration. The instrument was not set forth in any of the pleadings. The guaranty could have been an intrinsic part of the note. The pleadings did not indicate whether intrinsic or extrinsic evidence would be required as proof. As a matter of fact, as hereafter appears, the guaranty was intrinsic. [2] Nor is there any merit in the further objection to the plea that it fails to allege that the guarantors were not indemnified by the principal for the guaranty. It is true that under section
Counsel for respondent presents, in support of the judgment, the additional argument that any oral guaranty given or made when the sale took place was made to Stockholders Auxiliary Corporation, the buyer; that it was a special guaranty which would not inure to the benefit of plaintiff bank; that no one but the particular person addressed may act upon a proposal of special guaranty and the fact that the purchasing corporation may have been either the agent or principal of the Bank of Italy would not alter the situation; that a new party cannot be thus imported into a contract and imposed upon guarantors without their consent any more than a change can be made in other pre-existing conditions, as one has a right to choose those with whom he may contract (citing Garfield v. Ford,
The judgment is affirmed.
Knight, J., and Cashin, J., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 6, 1927. *249