214 P. 278 | Cal. Ct. App. | 1923
This is an appeal from a judgment entered upon an order granting the motion of the defendant John G. Hoyt for a nonsuit. Different phases of this litigation have been considered before by the supreme court and district court of appeal of this state. (Robson v. Superior Court,
[1] At the outset, in view of the rule that all the evidence is to be taken most favorably for the plaintiff in considering the defendant's motion for a nonsuit, we must say that the record shows that the payment of the mortgage under consideration was undertaken, personally, by the respondent Hoyt, as a part consideration of the purchase price of the property involved. *712
[2] In the trial court it was urged by respondent that in paying the amount of the deficiency judgment to the mortgagee, Hibernia Savings and Loan Society, Robson was a volunteer and, therefore, was not entitled to be reimbursed by Hoyt. This is upon the theory that Hoyt was the principal debtor and Robson the surety, and that the creditor, the mortgagee, by granting an extension of time to Hoyt within which to pay the debt, had released the surety. We think this position is unsound. In the first place, there was no valid, binding agreement upon the part of the bank to extend the time of payment of the loan. The bank was asked if it would be agreeable to it to extend the time of payment upon the loan, and replied that this would not be objectionable. There was no consideration for this extension of time and it was unenforceable. In the case of TitleGuarantee Trust Co. v. Weiher et al., 30 Misc. Rep. 250 [63 N.Y. Supp. 224], it was said: "The agreement made by the mortgagee with the owner of the equity of redemption who had purchased the premises subject to the mortgage, that the payment of the mortgage debt might be delayed until March 12, 1899, apparently left the owner at liberty to pay off the mortgage debt at once, if he wished to do so, and was therefore without consideration and not enforceable. See Moser v. Walker,
"To have the effect of discharging the surety, an agreement for the extension of time of payment made by the creditor with the principal debtor without the consent of the surety must be upon a valid consideration, such as will preclude the creditor from enforcing the debt against the principal; and an agreement by a mortgagee to extend the time of payment of the bond and mortgage until a future day, without other consideration than the continuance of the original terms, including the tax, insurance and interest clauses is void for want of consideration. See Olmstead v. Latimer,
It is true, of course, that as between Robson and Hoyt, Hoyt was principal and Robson surety. However, as between these parties and the mortgagee, the relation took on a different aspect. "The right existing in the mortgagee was entirely several as to each of said persons, none of whom would have a right as against said mortgagee to insist that any of the others should be made parties defendant to the foreclosure proceedings or be embraced in any judgment in the mortgagee's favor to be rendered therein." (Robson v. O'Toole, supra. See, also, Robson v. Superior Court, supra; Hopkins v. Warner,
[4] The most formidable defense of the order granting the motion for nonsuit is maintained by respondent in his position that the showing made by plaintiff does not meet the rule that where a grantor of real property is not personally liable for a mortgage debt, a stipulation in a deed from him to his grantee that said grantee shall pay, personally, the mortgage indebtedness will not be regarded in law or equity as a contract intended for the benefit of a third person. (Case v.Egan,
Of course, the trial court might have permitted an amendment of the pleadings to conform to the proof, or might have found the facts in accordance with the proof. (Code Civ. Proc., secs. 469, 470.) That neither of these things was done is perhaps due to the fact that the defendant and respondent did not call the matter to the attention of the court or of the plaintiff. The nonsuit was not asked for this reason, and defendant's strongest position with reference to the matter is that this was an implied ground for nonsuit. [6] It is the policy of courts to favor liberal amendments in the interest of justice, and, undoubtedly, a party relying upon appeal upon a variance between pleadings and proof should call attention to the matter explicitly in the trial court. (Keefe v. Keefe,
The order granting the nonsuit cannot be sustained, therefore, because of a variance between the pleadings and proof. We find no theory upon which such order was proper.
The judgment is reversed.
Sturtevant, J., and Nourse, J., concurred. *716
A petition for a rehearing of this cause was denied by the district court of appeal on March 9, 1923, and the following opinion then rendered thereon:
THE COURT. — In the above-entitled matter, after decision by this court, respondent John G. Hoyt has petitioned this court for a reheating. The first matter urged upon our attention by the petition for rehearing has reference to the following statement in the opinion heretofore filed herein: "At the outset, in view of the rule that all the evidence is to be taken most favorably for the plaintiff in considering the defendant's motion for a nonsuit, we must say that the record shows that the payment of the mortgage under consideration was undertaken, personally, by the respondent Hoyt, as a part consideration of the purchase price of the property involved."
Petitioner admits the correctness of the rule stated, but urges that the testimony in the record which tends to show that Hoyt assumed the payment of the mortgage as a part consideration for the purchase price of the property, was parol testimony, and since such assumption of the mortgage does not appear by the deed conveying the property to Hoyt nor by the written preliminary agreement between the parties, the plaintiff is precluded from showing it by parol, under the well-settled rule that no variation of a written instrument by parol will be permitted. [7] In response to this contention we desire to point out that an exception to the parol evidence rule occurs when the parol testimony is directed to the consideration for a deed. It has always been held that the amount or kind of consideration recited in a deed is open to contradiction or explanation. (White v. Schader,
The other matters urged in the petition for rehearing are sufficiently covered, we think, by the opinion heretofore filed.
The petition for a rehearing is denied.
All the Justices concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 9, 1923.
All the Justices concurred.