From a judgment rendered against him as principal upon a writing signed by him as agent for one Robert Gardiner, president of defendant Jersey Farm Dairy Company, a corporаtion, defendant Masters has appealed.
*128 The writing upon which the action is based is in the form of a letter on the stationery of Jersey Farm Dairy Company, addressed to plaintiff, which in effect guarantees “future purchases of Mr. Pete Deghi” from plaintiff for feeding his cows. The letter was signed, “Robert Gardiner, By Geo. Masters”. The original comрlaint was filed April 29, 1929, against defendant Jersey Farm Dairy Company, Golden State Milk Products Company, Robert Gardiner, George Masters and Pete Ciabarri, and sets forth eight deliveriеs of hay to Deghi, sold solely by reason of said guarantee. The case was tried before the Honorable Raglan Tuttle, who filed an opinion in writing in which he found that the written guarantee had been executed by defendant Masters without any authorization from the other defendants and without belief on his part that he had authority to so act. The сourt ordered briefs to be filed on the question of amendment of the complaint. After considering the briefs submitted it then made' an order granting leave to plaintiff to file its proposed amended complaint, which in effect alleged, in addition to the allegations of the original complaint, excluding allegations referring to the other defendants, that Masters executed said writing without believing in good faith that he had authority so to do. The court also ordered that all defendants except Masters have judgmеnt against plaintiff. The amended complaint was filed June 10, 1930. The eight alleged sales and deliveries of hay to Deghi occurred on different dates from December 19, 1927, to Fеbruary 14, 1928. An answer to the amended complaint was filed by defendant Masters on June 20, 1930, which among other defenses pleaded the statute of limitations, and the cause came on for trial on the issues raised by the amended complaint and answer before the Honorable Thomas C. Gould, on September'26, 1930, who found in substance that the writing was exеcuted and delivered by Masters without any belief in good faith or at all that he had authority to sign the same; that he did not have authority so to do; that plaintiff sold and delivered sаid hay relying upon said guarantee, and that Masters had notice of such deliveries and of the amount thereof. Judgment was entered on such findings for $2,658.35 against Masters.
Appellаnt contends (1) that he was deprived of a fair trial in that neither judge heard and weighed the entire *129 testimony taken; (2) that the trial court erred in permitting the amendment of the cоmplaint as it did and changing the complaint from an ex contractu liability to one ex delicto; (3) that no bad faith is shown by the evidence on Masters’ part, and (4) that the action is barred by the statute.
(1) The record shows that at the trial before Judge Gould both sides stipulated that the hay was sold and delivered to Deghi as alleged in the amended complaint, that it had not been paid for and that Dеghi was at all times a shipper of the Jersey Farm Dairy Company, which was a condition of the continuing guarantee. Evidence was then introduced by plaintiff proving the execution of the writing by Masters and that Deghi’s financial condition was such that plaintiff would not sell him without a guarantee of his account and would not have delivered him any hay except for such guarantee. Defendant Masters, who was the auditor of Jersey Farm Dairy Company and who also kept Deghi’s books, testified that he had no authority from anyоne to execute the writing and that he knew Gardiner, defendant company’s president, would not sign any such letter because he had frequently so told him.
So far as the recоrd shows no objection was made to the trial before the second judge, but it apparently shows a perfect willingness to so proceed on the part of both рarties. So far as the record shows there was no necessity to resort to any of the evidence produced at the first trial, and that produced before Judge Gоuld amply supports the judgment. As far as the evidence is concerned, the second trial had no relation to the first, and appellant had the benefit of a trial before a judge who had not already found against him on the material point involved. We fail to see where he was prejudiced in any way.
(2) There has been some confusion in the past as to the nature of the liability upon which this action is based. Some of the decisions hold that to treat it as a liability on the contract, which did not have aрt language to charge the agent personally, would result in making a new contract for the parties
(Hall
v.
Crandall,
(3) Appellant’s own testimony amply supports the finding that he entered into the contract in the name of the principal without believing in good faith that he had authority so to do, and that is all the statute requires.
(4) It is urged that the cause of action is barred by subsections 1 or 4 of section 338 of the Code of Civil Proсedure. The liability under the guarantee did not accrue until the sales were made and Deghi had failed to pay. Assuming that the price was to be paid in cash on delivery, nо liability could accrue until the date of delivery at the earliest. All of the deliveries appear to be within three years from the date the amended complaint was filed, so there seems to be no merit in appellant’s contention, even assuming that it is a liability created by statute. Under the eases cited, however, the liability being that of the principal, who is not bound by the unauthorized contract, would, as we have said, seem to be one founded upon an instrument in writing, action on which is barred if not brought within four years from its accrual. (Sec. 337 (1), Code Civ. Proc.)
Appellant also urges that section 2343 of the Civil Code should be literally construed if in derogation of the common law. The section does not seem to need any construction, as its language is clear and definite.
Judgment affirmed.
Works, P. J., and Stephens, J., concurred.