226 P. 412 | Cal. Ct. App. | 1924
This action was brought to recover the amount alleged to be due on a promissory note and to foreclose a chattel mortgage given to secure the same. The demurrer to the complaint interposed by the defendants other than Painter was sustained and judgment was entered in favor of the demurring defendants. This appeal is from the judgment. *382
In so far as material to the questions raised by this appeal, the complaint alleges that at the times mentioned therein H. Rummelsburg and R. Rummelsburg were partners, "doing business under the firm name and style of H. Rummelsburg Son, certificate of said partnership under said name and proof of publication thereof being on file in the manner and form required by law in the office of the county clerk of the County of Solano"; that on the day they bear date the defendant Painter executed and delivered to "H. Rummelsburg Son" the promissory note and mortgage on which the action is based; that the defendants other than Painter "claim some right, title or interest in the personal property described in the chattel mortgage above mentioned and referred to; that the claims of the defendants and each of them are subsequent to and subject to the mortgage of plaintiffs." A copy of the mortgage, containing a copy of the note, is attached to the complaint and made a part thereof.
[1] Respondents contend that the chattel mortgage was not given to the plaintiff partnership but to the individual partners. The mortgage recites that it is made "to H. Rummelsburg and Roland Rummelsburg, copartners, doing business under the firm name and style of 'H. Rummelsburg Son' . . . mortgagees," and the plural "mortgagees" is employed throughout. If there were nothing else to indicate the intention of the parties it might be inferred that the words "copartners, doing business," etc., are merely descriptive, but the mortgage further recites that it is given "as security for the payment to 'H. Rummelsburg Son' the said mortgagees." The promissory note set out therein is made payable "to the order of H. Rummelsburg Son." The affidavit on behalf of the mortgagees is made by "H. Rummelsburg of Rummelsburg Son, the mortgagees." The most that can be said in favor of respondents' contention is that on its face the mortgage is uncertain as to whether it was given to the partnership or to the individual partners. The complaint alleges that it was given to "H. Rummelsburg Son." If this allegation is true, and on demurrer its truth must be assumed, then the mortgage was executed by H. Rummelsburg on behalf of and as agent of the partnership. If in their answer the defendants shall deny this allegation, parol proof will be admissible at the trial upon *383
the issue thus raised. "The rule is well settled that where a reading of a simple contract, however inartificially it may be drawn, discloses that it is executed for or on behalf of a principal, or discloses an intent to bind such principal, or even leaves the matter one of doubt, parol evidence may be employed to determine whose contract it is, and this even in cases where the instrument is sufficiently clear in its terms to bind the agent." (Southern Pac. Co. v. Von Schmidt DredgeCo.,
In opposition to the foregoing authorities respondents rely on the cases of Davidson v. Knox,
[2] Respondents urge that the affidavit attached to the mortgage is insufficient. The body thereof reads as follows: "Joseph E. Painter, the mortgagor in the foregoing mortgage named, and H. Rummelsburg of H. Rummelsburg Son, the mortgagees, in said mortgage named, each being duly sworn, each for himself, doth depose and say: That the aforesaid mortgage is made in good faith and without any design to hinder, delay or defraud any creditor or creditors." The affidavit is sufficient. (Modesto Bank v. Owens,
[3] The complaint does not allege that the mortgage was recorded. Section
[4] It is urged that the allegation in the complaint of the publication and filing of the certificate of copartnership, as required by sections 2466 and 2468 of the Civil Code, is insufficient. The defendants demurred on the ground that the complaint is uncertain in that it cannot be ascertained therefrom "whether or not the certificate of partnership *385
. . . was ever published as required by law." InSpreckels v. Grace Darling Hosp. Assn.,
[5] It is urged that the complaint does not allege that Painter had any interest in the property at the time of the execution of the mortgage. In Sielbeck v. Grothman,
The judgment is reversed, with directions to the trial court to overrule the demurrer and give the demurring defendants a reasonable time to answer.
Plummer, J., and Hart, J., concurred.