mеnt against him in favor of plaintiff, County of San Diego, awarding the latter $5,879.27 on account of medical and hospital services defendant furnished an alien named Aguirre, an indigent person.
In July 1960, Aguirre sought admission into the United States from Mexico as an immigrant; applied to the American consul in Tijuana, Mexico, for a visa; and delivered to the consul an affidavit executed by defendant in which, among other things, he stated: “I am ready and willing to support the above- named [Aguirre] in the United States, and I guarantee that HE will not become a Public Charge.”
Aguirre, who was a farmer, was granted a visa and admitted into the United States; worked on defendant’s farm for a month; then went to work on a farm owned by a man named Tachiki; and continued to work for Tachiki until he was hospitalized for tuberculosis on November 6, 1964. In the *352 meantime Aguirre sponsored admission of his wife and three children into the United States from Mexico as alien immigrants. Thereafter a fourth child was bom in the United States. During all of this time they were residents of the County of San Diego. Aguirre and the members of his family received hospitalization in a hospital maintained by the county.
The Administrative Code of the County of San Diego governs admission to the county hospital and, among other things, authorizes admittance of a person determined to be a “medical indigent” under rules prescribed in a directive from the director of medical institutions.
On November 6, 1964, Aguirre, who was suffering from tuberculosis, was admitted to the hospital because a man with a family of four earning less than $340 per month, pursuant to the directive, is a “medical indigent” entitled to admission to the hospital, and Aguirre theretofore earned only $215 per month.
The County Administrative Code also provides: ‘' Except as otherwise provided by law or by contraсt all aid rendered shall be a charge against the patient, his spoúse when he is married, or his parents when he is a minor, and they shall be jointly and severally liable to pay the cost thereof.” State law requires the County of San Diego to furnish hospitalization to an indigent person. (Welf. & Inst. Code, § Welf. & Inst. Code, § 2500; Health & Saf. Code, § 1445;
County of Los Angeles
v.
Frisbie,
The County sued defendant to recover the unpaid balance of the charges against Aguirre; alleged it was obligated by state law to furnish hospital services to indigent persons and Aguirre was an indigent person when the services for which he was charged were rendered; and sought recovery from defendant upon the theory he-, by virtue of his sponsor’s affidavit, was liable for services - rendered Aguirre as a public charge. Admittedly, while Aguirre was in the hospital he was unable to pay anything for the services rendered him.
The trial court found, among other things, “defendant at the time of executing said affidavit [i.e., the sponsor’s affidavit] intended to and did execute said affidavit with the intent that it become a contract of continuing guarantee enforceable by any state of the United States ... or county within said state in which Edmundo Espinoza Aguirre became, and received aid as, a public charge”; defendant executed the affidavit “with the intent that said affidavit when accepted by the American Consul in Tijuana, Mexico, constitute a legally enforceable contract between said defendant and the United States Department of Immigration and Naturalization Service”; when the affidavit was accepted by the American Consul he intended “said contract be enforceable by the United States, any state of the United States, or any . . . county . . . within said state . . .”; and hospital services were rendered Aguirre by the County of San Diego *354 for the period November 6, 1964, to February 10, 1966, during which time “Aguirre was an indigent person and a public charge of the County of San Diego.” Judgment in favor of the County against defendant for the amount of the unpaid charges was entered accordingly.
Defendant contends the circumstances attendant upon execution of the affidavit establish as a matter of law there was no intention thereby to create a legal obligation to support Aguirre, or otherwise render him liable for hospitalization furnished Aguirre as a рublic charge. In support of his position defendant cites
Department of Mental Hygiene of Cal.
v.
Renal,
Where parties to a writing purporting to be a contract do not intend it to be a contract, no contract exists.
(Halldin
v.
Usher,
An alien seeking admission to the United States as an immigrant, as a condition to admission, obtains an immigrant visa from an American сonsul. (8 U.S.C.A. § 1181.) If, among other things, he is afflicted with tuberculosis in any form or in the opinion of the consular officer is likely at any time to become a public charge he is ineligible to receive a visa and issuance thereof to him should be denied. (8 U.S.C.A. §§ 1182 and 1201(g).) However, a visa may not be denied on the ground the alien is likely to become a public charge unless the circumstances known to the consular officer reasonably support this conclusion.
(Johnson
v.
Tertzag, 2
F.2d 40, 42;
Ex parte Hosaye Sakaguchi,
The consular officer has authority “to require such documents as he may consider necessary to establish the alien’s eligibility to receive” a visa. (C.F.R. §42.111.) Apparently, in light of this regulation, the consular officer may consider a sponsor’s affidavit of support as evidence in determining whether an applicant is likely to become a public charge. Whether in the case at bench the sponsor’s affidavit of support was submitted routinely or was required because of particular circumstances known to the consular оfficer, does not appear. A visa office bulletin, dated November 7, 1958, apparently directed to consular officers, stated that an affidavit of support in itself would not establish the alien would not be likely to become a public charge; the evidentiary value of such an affidavit is dependent upon the relationship between the person executing it and the alien; where the affiant is financially responsible and is under a legal obligation to support the alien the affidavit, as a rule, will be satisfactory evidence the alien will not become a public charge; but, on the other hand, “an affidavit submitted by a casual friend or distant relative who has little or no personal knowledge of the visa applicant will have limited, if any, probative value”. (Visa Office Bulletin No. 7,1958.)
In the case at bench the evidence establishes defendant did not know Aguirre аnd executed the affidavit only because he *356 was requested to do so by Aguirre’s father-in-law. Defendant testified he believed the affidavit was merely a working letter; did not read it; did not have it read to .him; and did not know it contained any provision respecting Aguirre’s support. In light of the finding in the premises we must assume the trial court rejected this evidence. Under this state of the record, there is no showing respecting defendant’s intention except that reflected in the writing, and no showing respecting the intention of the consular officer except that reflected by the'rules' and regulations under which he acted and the status of the law in the premises. When the consular officer considered the proof submitted to' him in support of Aguirre’s application for a visa the bulletin heretofore noted had been in effect for approximately a year and a half, the New York case had been decided before that bulletin had been issued, and the decision in the Michigan case had been final for more than a year.
In
United States
ex rel.
Smith
v.
Curran,
The circumstances attendant upon execution of the sponsor’s affidavit by defendant dictate the conclusion the parties to the transaction did not intend the creation of a contract, as shown by the fact the affidavit is accepted by the consular office merеly as evidence on the issue of whether the applicant for a visa is likely to become a public charge; the probative value, if any, of such an affidavit by a person not related to the applicant in that degree imposing a legal obligation to support is limited; two higher court opinions hold the affidavit imposed on the affiant a moral obligation and not a legal obligation; the legislative history of the immigration laws, as noted in the decisions in those cases, reflects an intention the execution of the affidavit does not impose a legal obligation; a federal court decision of long standing dictates the conclusion the affidavit does not create a legal claim for support; and even though the consular officer is of the opinion the applicant is likely to become á public charge he, nеvertheless, may be admitted to the United States upon posting a *357 bond in an amount and on conditions approved by the Attorney General, which unequivocally creates legal obligations.
A consideration of the confusion and uncertainty inherent in the alleged contractual language of the affidavit in the case at bench buttresses the conclusion no legal obligation was intended.
The writing is entitled “Affidavit of Support” not а “Contract of Support” nor an “Agreement of Support”; is signed only by the affiant; does not recite or disclose a consideration ; is a form supplied by an undisclosed source; in major part contains statements of an evidentiary nature, added to the form, respecting the affiant’s citizenship, marital status, property ownership and income; and in only two lines sets forth the form language upon which plaintiff relies as the bаsis for a contractual obligation.
The alleged promissory language was a statement by affiant that he is “ready and willing to support” the alien and the further statement “I guarantee that HE [the alien] will not become a Public Charge. ’ ’ The confusion attendant upon the contractual nature of this language is demonstrated by the trial court’s findings of fact and conclusions of law.
The court found defendant executed the affidavit “with the intent that it become a contract of continuing guarantee” enforceable by any county in the United States in which Aguirre received aid as a public charge, and concluded “by virtue of the execution of the affidavit of support by the defendant and the subsequent issuance of the visa by the American Consul . . . the defendant and the United States entered into a contract of continuing guarantee expressly for the benefit” of any county within the United States. (Italics added.)
A “guarantor is one who promises to answer for the debt, default or miscarriage of another,” called the principal. (Civ. Code, § 2787.) The contract containing the promise is a contract of guarantee. In concluding the sponsor’s affidavit constituted a contract of continuing guarantee for the benefit of the County of San Diego, it appears the trial court found defendant was a guarantor and Aguirre, as principal, was the debtor or obligor under a debt or other obligation in favor of the County of San Diego, as creditor or obligee. However, the findings do not reveal what debt or obligation was guaranteed. By statute the liability of a guarantor is commensurate with that of the principal. (Civ. Code, § 2809.) “ [W]here the principal is not liable on the obligation, neither is the guarantor.”
*358
(U. S
. Leasing Corp.
v.
Du Pont,
Further confusion and uncertainty respecting the legal effect of defendant’s statement: “I guarantee that HE will not becоme a Public Charge” is evidenced in the trial court’s conclusion of law where, although it had found and determined the statement created a “contract of continuing guarantee,” it further concluded 1 ‘ defendant made an unconditional guarantee . . . that he would not permit Edmundo Espinoza Aguirre to become a public charge”; defendant breached “said contract when Edmundo Espinoza Aguirre became a public сharge”; and plaintiff is damaged in the sum of $5,879.27 as a proximate result of such breach. These conclusions are premised on a contract of warranty rather than a contract of guarantee. Assuming defendant and the consular officer issuing Aguirre’s visa, intended the term “guarantee” should have the legal effect of the term “warrant,” the circumstances attendant upon the transaction, in light of the contention a legal obligation was intended, present an unsurmountable aura of confusion and uncertainty. Did the parties contemplate the warranty would require only the elimination of those factors considered by the consular officer as circumstances reasonably supporting the conclusion the alien was likely to become a public charge? In ascertaining the intention of the parties, respecting the legal effeсt of the affidavit, is it reasonable to assume the parties contemplated factors that might cause an alien to become a public charge not existing at *359 the time of his application for a visa ? When, as in the instant case, Aguirre became a public charge because he contracted tuberculosis after admission into the United States, is it reasonable to conclude the parties contemplated this cause and if contemplated, would they have intended to' create a legal obligation warranting against its occurrence? An alien “afflicted with tuberculosis in any form” is ineligible for admission into the United States, even upon posting a bond, whether or not it is likely he would become a public 'charge. Does the warranty contemplate the elimination of factors over which the sponsor has no control but which would cause the alien to become a public charge such, as in the instant case, the alien’s sponsorship for admission into the United States of the members of his family? Aguirre was found to be a “medical indigent” because his earning capacity, as established by his previous income, was less than $340 per month and, under county regulations, a man with a family of four who does not earn $340 per month is an indigent. The evidence does not show whether a single person earning $215 per month, as did Aguirre, was an indigent person under the county regulations. Is it reasonable to conclude the parties contemplated a legal obligation the extent of which varies from state to state, depending upon local regulations establishing the duty to confer upon a resident alien services which would make him a public charge about which the contracting parties hаd no information ?
Where the obligations attendant upon execution of a writtén agreement are not clearly expressed ‘ ‘ the terms of the instrument and the circumstances under which it was made determine the character and extent of the undertaking.”
(Everts
v.
Matteson, supra,
Another circumstance supporting the conclusion the sponsor and the United States do not intend execution of the sponsor’s affidavit will create a legal obligation is the fact the alien is not a party to the alleged contract; is not obligated to do anything which would prevent his becoming a .public charge; in nowise is subject to the control of the sponsor; may refuse employment offеred him by the sponsor; may neglect his health to the extent he contracts a disabling disease; and in a variety of other ways may so conduct himself that he will become a public charge.
We conclude the determination of the trial court the execution of the sponsor’s affidavit created a contract between the defendant and the United States, as a matter of law, is not supported by the evidence.
The judgment is reversed.
Brown (Gerald), P. J., and Whelan, J., concurred.
Respondent’s petition for a hearing by the Supreme Court was denied November 19,1969.