193 F. 305 | 9th Cir. | 1912
(after stating the facts as above)..
The complaint sets forth the promissory note by its tenor. The note contains an acknowledgment of value received. There is no omission of formal allegations of jurisdictional facts and of possession and'ownership of the note and nonpayment. Therefore the note as it is pleaded is prima facie valid, and it was not necessary for the pleader to anticipate and negative possible defenses. Therefore the first count of the complaint is not defective as a statement of facts sufficient to constitute a cause of action.
The actors who were pressing the plaintiff in error to meet his obligation under the guaranty-, and who received and accepted the
What will be said in this opinion touching the grounds of defense relied upon in the arguments of counsel will be the decision of this court of all questions involved in the conclusions of law referred to in assignments 6, 7, 8, 9, and 10, and in the general assignments numbered 24 and 25.
The defenses to the action urged in the arguments are multifarious. It is contended that there was no consideration for either the guaranty or the promissory note; that the guaranty was not accepted; that notice of acceptance of the guaranty was not given immediately to the guarantors; and that the guarantee did not complete performance of the contract in full compliance with its original specifications. Upon all of these grounds it is insisted that no obligation attached to the guarantors. Inconsistently with a plea of non est factum, it is also contended, in avoidance-of liability under the guaranty, that both of the guarantors were released, as a legal consequence of the negligence of McEwen Bros, in failing to inform the plaintiff in error that the contract had been modified and fulfilled, as modified, by delivery of the materials to the carrier on or prior to the 8th day of June, 1900, because by withholding that information he was misled and hilled by a false assurance of safety, so that he delayed to file
The record does not contain any allegation in pleading or proof of an agreement, express or implied, to release the co-guarantor from any part of his obligation, nor to accept the promissory note given by the plaintiff in error for one-half of the debt and not exact from him fulfillment of his obligation for the whole debt; on the contrary, by their letter acknowledging receipt of the first note given in May, 1901, McEwen Bros, informed him in clear and explicit terms that he would still be held to his obligation as guarantor of the whole debt.
The findings are articulated in 22 paragraphs, and, without extending the length of this opinion by a detailed analysis, we deem it sufficient to say that they appear to be comprehensive and positive in the statement of all the material facts essential to support the judgment and to be free from contradictions or inconsistent statements.
On consideration of the whole case, it is the opinion of the court that the record ';scloses no error of the trial court for which the judgment shorn., be reversed. Therefore it is affirmed.