94 Cal. 59 | Cal. | 1892
The plaintiff seeks in this action to have declared satisfied, so far as he is concerned, a certain judgment obtained by the defendant national bank against plaintiff and one O. S. Hubbell upon a nonnegotiable note.
The court finds that the plaintiff was the apparent maker of the note referred to, but was in fact the surety of Hubbell, the payee named therein; that the note was made for the accommodation of Hubbell, and it is alleged in the complaint, and not denied in the answer, that Hubbell, on the day of its execution, borrowed from the defendant national bank upon said note the full amount called for by it, and indorsed the same to said bank. It
There is no bill of exceptions in the record, and the questions presented by this appeal arise upon the pleadings and findings of the court.
1. As before stated, the pleadings admit that the defendant national bank loaned to Hubbell, upon the note above referred to, money equal to its face value, and that
The fact that the national bank did not know at the time of the execution of the note that Hubbell was the principal debtor, and that it looked solely to plaintiff as the principal, does not affect the question we are now considering. If in point of fact the note was paid or satisfied, the defendant national bank was not entitled to the judgment which it subsequently recovered thereon against the plaintiff.
While it may be true that if the bank did not consent to deal with plaintiff otherwise than as a principal upon said note, the mere release of Hubbell would not, of itself, operate as a release of plaintiff, still, if, in order to secure such release, Hubbell paid anything upon said
2. The evidence upon which the case was based is not in the record before us, and as finding No. 11 leaves it somewhat doubtful whether the court below gave to its finding in regard to the settlement made by Hubbell with the respondent bank the same construction we have, and which we think it must bear, we deem it proper under the rule declared in Schroeder v. Schweizer Lloyd T. V. G., 60 Cal. 467, 44 Am. Rep. 61, to order a retrial, rather than to direct the entry of a judgment for the plaintiff upon the findings as they are.
Judgment reversed, and cause remanded for a new trial.
Harrison, J., McFarland, J., Paterson, J., Garoutte, J., and Sharpstein, J., concurred.
Rehearing denied.