7 Cal. App. 2d 280 | Cal. Ct. App. | 1935
This appeal is from a judgment in favor of plaintiff upon a guaranty executed by defendant. Plaintiff’s assignor, Fidelity Savings and Loan Association, made a loan to a corporation, taking a note therefor secured by a trust deed upon real property. Defendant was president of the corporation borrowing the money. The Fidelity company refused to make the loan unless defendant would guarantee payment thereof, which defendant, through an agent, agreed to do. The guaranty was not signed until after the execution of the note and the passing of the money from the lender to the borrower. Thereafter the Fidelity company assigned the note, trust deed and guaranty to plaintiff. After default in payment the property was sold, bringing an insufficient amount to satisfy the indebtedness. Thereupon this action to recover the deficiency was brought against the guarantor.
A guaranty of an antecedent debt of another must be supported by a consideration distinct from the original obligation (Civ. Code, sec. 2792), but an oral agreement to guarantee an indebtedness, followed by the execution of a written guaranty, is valid. (Kinney v. Jos. Herspring & Co., 53 Cal. App. 628 [200 Pac. 737].) Where, as here, the making and delivery of the note, the transfer of the consideration from lender to borrower and the guaranty constituted one transaction, the consideration of the one promise supports the other and the guaranty is valid, even though the guaranty was not signed coincidentally with the signing of the note and the passing of the funds to the borrower. (Howland v. Aitch, 38 Cal. 133.)
Defendant contends that there was no agreement to guarantee the note on his part antecedently to or concurrently with the signing of the note or the making of the loan. There was no direct evidence to that effect, but there was sufficient circumstantial evidence. One Warner, general manager of the corporation which borrowed the money, made application to the Fidelity company for the loan. He was told that the
Both the Fidelity company and plaintiff were building and loan associations. A stipulation at the trial that the note, trust deed and guaranty were transferred by the Fidelity company to the plaintiff was sufficient to sustain the finding to that effect, and rendered further evidence unnecessary to show compliance with section 647a of the Civil Code as it read at the date of the transfer.
The appeal from the order denying a new trial is dismissed. The judgment is affirmed.
Stephens, P. J., and Grail, J., concurred.