139 Cal. App. 164 | Cal. Ct. App. | 1934
In an action against Eureka Petroleum Corporation, plaintiff filed a complaint in two counts for the several sums of $9,671.10 and $6,158.65, making a total demand of $15,829.75, besides interest. Both demands arose out of a contract of date October 18, 1927, and were for unpaid balances due for gasoline sold and delivered to the defendant under said contract. After filing the original complaint, an attachment was levied against property of the defendant. Thereupon, for the purpose of obtaining release of said attachment, the defendant herein executed an undertaking in the sum of $19,000, whereby it promised “that in ease the plaintiff recover judgment in the action, we will on demand pay to plaintiff the amount of whatever judgment may be recovered in said action, together with the percentage, interest and costs”. The plaintiff having recovered judgment in the action in the sum of $18,032.20, which judgment was not paid, plaintiff brought this action to recover on the bond. The judgment herein, from which the defendant Seaboard Surety Corporation of America appeals, is a judgment entered pursuant to an order granting a motion for judgment on the pleadings, after answer filed by the defendant.
The principal contention of appellant is that it was exonerated from the penalty of its undertaking by reason of amendments to the complaint in the original action, made after the bond was executed, whereby the liability of the surety was changed. Turner v. Fidelity & Deposit Co. of Maryland, 187 Cal. 76 [200 Pac. 959], was an action similar
“It is generally held that where a surety whose obligation discharges from attachment the assets of the debtor upon which the attaching creditor had a right to rely for security of his claim, such surety ought not to be exempted from liability unless the obligation with reference to which he contracted has been essentially changed without his consent. Having made himself responsible for ‘any judgment recovered in the action’, it would be unduly limiting his agreement to permit him to plead successfully an amendment that did not alter the ‘nature and character’ of the original claim.” Further on in the opinion the court said: “The obligation which it was sought to enforce against the principal through the suit and judgment demanded was the payment of the liability arising under the contracts set out in the original complaint. There was no alteration • or modification of that contractual liability óf the defendant. The plaintiff was not estopped by his original complaint from making any corrections or supplying any omissions by amendment which were proper or necessary to fully set forth the liability of the defendant under the contract sued on. The surety entered upon its contract to guarantee payment of the judgment, any judgment on the cause of action, with presumptive understanding that the original complaint might be amended to cover any damages which had occurred prior to commencement of suit from a breach of the contracts which constituted the cause of action, though omitted from the original complaint. (Bierce v. Waterhouse, 219 U. S. 320 [55 L. Ed. 237, 31 Sup. Ct. 241, see, also, Rose’s U. S. Notes].)
“If the liability of the release bond had been predicated upon a judgment on the precise facts pleaded in the original cause of action, then such complaint would be the measure of the liability, but the surety contracted upon the basis of whatever judgment was obtained in the action, and it will
The law being thus clearly stated we have only to determine upon its proper application to the facts of the ease at bar. Since the judgment rendered herein is a judgment on the pleadings in a case where the complaint states a good cause of action, necessarily the judgment is based upon a decision that the answer filed by the defendant does not state a defense to the action. The theory of the defense relied upon by the defendant is that the cause of action upon which the plaintiff recovered judgment in the prior action “is not the same cause of action alleged by plaintiff in its original complaint pursuant to which this defendant filed its undertaking under release of attachment as surety for said Eureka Petroleum Corporation”. In support of this defense the answer herein sets forth the original complaint, and also the amended complaint in the former action, and alleges that the judgment in that action was rendered on said amended complaint. For the purposes of the present decision we must assume that the facts of the case are truly alleged in the answer herein; that is to say, that the judgment in the former action was based on said amended complaint, and that the defendant did not consent to nor did it have any knowledge of the filing of said amended complaint at the time of the filing thereof. The allegation in the answer, “that the judgment recovered by the plaintiff herein against the Eureka Petroleum Corporation is not the judgment which this defendant in its undertaking under
On October 18, 1927, plaintiff and the Eureka Petroleum Corporation entered into a written contract for the sale by the plaintiff to said corporation of gasoline to be delivered from time to time at the agreed price of ten cents per gallon. The agreement was made for the term of thirty days from date and was to continue thereafter until notice of termination given by either party. The complaint in the former action was in two counts, each of which stated a cause of action arising out of said contract. In the first count the complaint alleged delivery to the defendant, between December 13, 1927, and December 20, 1927, of gasoline of the aggregate price and value of $9,671.10. Also in this count there were set forth six checks which had been drawn by the defendant and delivered to the plaintiff in the aggregate sum above stated, all of which on presentation to the bank against which they were drawn were returned unpaid for the reason that the defendant had not sufficient funds for the payment thereof. It was alleged that thereafter the plaintiff made demand upon the defendant for the payment of said total sum represented by said checks, and that the defendant had failed, neglected and refused to pay said sum of $9,671.10, or any part thereof. In the second count of the first complaint it was alleged that between April 1, 1928, and May 5, 1928, plaintiff sold and delivered gasoline to the defendant under the terms and conditions of said contract, upon which sales and deliveries there remained due, owing and unpaid the sum of $6,158.65. Plaintiff prayed judgment for the said two unpaid amounts of money.
“That defendant agreed to pay plaintiff cash in advance for all gasoline delivered under the terms and conditions of said new contract.
“That defendant further promised and agreed to pay to plaintiff the sum of approximately twelve hundred ($1,200.00) dollars per week in addition to cash payments for gasoline delivered from plaintiff to defendant until said balance of twenty-three thousand two hundred twenty-six and 70/100 ($23,226.70) dollars was fully paid.
“That thereafter and between the 1st day of January, 1928, and the 12th day of April, 1928, the plaintiff sold and delivered to the defendant gasoline of the aggregate price and value of seventy-six thousand nine hundred eighty-three and 86/100 ($76,983.86) dollars, at the rate of ten and one-quarter (101,4c) cents per gallon.
“That thereafter, on or about the 12th day of April, 1928, the said defendant having failed to pay to the plaintiff the sum of $1,200.00 per week on account of the balance due and
“That pursuant to the contract last above referred to and entered into on the 12th day of April, 1928, plaintiff delivered to the defendant between the 12th day of April, 1928, and the 1st day of May, 1928, gasoline of the aggregate price and value of eleven thousand five hundred and ninety 01/100 ($11,590.01) dollars at the rate of ll%c per gallon in accordance with the terms of said contract.
“That on the 1st day of May, 1928, the defendant having failed and refused to comply with the terms of said contract last hereinabove referred to and entered into between the plaintiff and defendant on the 12th day of April, 1928, the plaintiff did cancel said contract and the plaintiff and defendant entered into a new contract on the said 1st day of May, 1928, wherein and whereby plaintiff agreed to sell to the defendant, and defendant agreed to purchase from the plaintiff, such amount of gasoline as plaintiff was able and willing to sell to the defendant from time to time, not exceeding the amount which plaintiff should request and desire
“That pursuant to the contract last hereinabove referred to, and entered into between plaintiff and defendant on the 1st day of May, 1928, plaintiff delivered to the said defendant gasoline in the aggregate price of three thousand seven hundred twenty-nine and 76/100 ($3,729.76) dollars, at the agreed price of 12'i4c per gallon.”
“Plaintiff further alleges that the defendant has failed, neglected and refused to pay any part of the balance due from defendant to plaintiff in the sum of $23,228.70 for gasoline sold and delivered up to the 1st day of January, 1928, or any part of the purchase price of gasoline sold and delivered to defendant as hereinbefore alleged subsequent to the 1st day of January, 1928, up to and including the 5th day of May, 1928, except the following amounts paid by the defendant to the plaintiff on the dates as follows.” Here follows a list of said amounts. “The balance, to-wit: $15,577.89, remains wholly due, owing and unpaid.
“That notwithstanding the several agreements of the defendant made on or about January 1, 1928, and subsequent thereto, to pay for all gasoline sold and delivered under the said several contracts at the time of delivery thereof and in addition thereto to pay the sum of at least $1,200.00 per week upon the unpaid balance for gasoline previously sold and delivered as hereinbefore alleged, the defendant has at all times failed and refused to comply with said contracts as to payment, and that from time to time the said defendant in drawing cheeks, has for some one or other of the aforesaid payments, endorsed memorandum thereon as plaintiff is informed and believes designating that such checks or the proceeds thereof shall be credited upon prior deliveries or amounts of gasoline sold or delivered prior to the issuance of such checks, and that for that reason the plaintiff is not now able and cannot designate the exact amount paid by the defendant for gasoline sold and delivered under the said several contracts hereinbefore alleged, but this plaintiff alleges that defendant has paid no more nor has any more money been paid on account of any of the amounts of gasoline sold and delivered as hereinbefore alleged except those as herein expressly stated. ’ ’
The original complaint in said action was filed June 1, 1928; the undertaking for release of attachment was executed June 4, 1928; the amended complaint was filed April 9, 1930. The judgment in that action was entered July 3, 1930, in the sum of $18,032.20, damages and interest. The present action was commenced October 22, 1930, and after answer filed the court rendered judgment on the pleadings as first herein stated.
A careful comparison of the first complaint in said action with the amended complaint upon which it is alleged that the judgment in that action was rendered has brought us to the conclusion that the amended complaint did not state a new and independent cause of action not included in the first complaint. Heretofore we have pointed out that the demand for $9,671.10 is included in the amount of the demand stated in the second count of the amended complaint. We are satisfied that the remaining $6,066.13 of the principal sum demanded in the amended complaint, was included within the second count of the first complaint which called for the principal sum of $6,158.65, for gasoline delivered between April 1, 1928, and May 5, 1928. This presumably was the unpaid balance due for the gasoline delivered during the period ending May 1, 1928, as stated in the second count of the first complaint. Although the second count of the amended complaint says that on January
On the third day of July, 1930, when the judgment against Eureka Petroleum Corporation was entered, a stipulation in writing was made between said corporation defendant and the plaintiff by their attorneys, that execution upon the judgment “may be stayed by order of court to and including the 31st day of August, 1930”. The defendant surety corporation by its answer in this present action alleged the fact of said stipulation, and that execution was stayed accordingly. The court in its findings herein declared that the filing of said stipulation did not exonerate the bond of the defendant. Appellant now contends that it was released by virtue of said stipulation, and that this was a defense to the action because the execution of such stipulation amounted to an extension of time on the liability without its consent. We may assume without reviewing the decisions on the subject, that a surety is exonerated in like manner with a guarantor (Civ. Code, sec. 2840), and that a guarantor is exonerated under the conditions set forth in section 2'819 of the Civil Code. One of these conditions is that by some act of the creditor, “the original obligation of the principal is altered in any respect, or the remedies or rights of the creditor against the principal, in respect thereto, in any way impaired or suspended”. The stipulation, made on the day of entry of the judgment (July 3, 1930), that execution upon the judgment '“may be stayed by order of court to and including the 31st day of August, 1930,” does not lend support to the contention here made by appellant,'unless we can say that by such stipulation and order the remedy of the creditor, in respect to the original
The judgment is affirmed.