201 Cal. 715 | Cal. | 1927
By the complaint herein, which contains twenty-six causes of action, plaintiff alleged an indebtedness against defendant, Central Alaska Fisheries Company, a corporation, evidenced by several promissory notes made and executed by Central Alaska Fisheries Company to the First National Bank of Berkeley, reduced by a few payments made thereon to the sum of $123,027.95, with interest, which indebtedness was assigned by W. H. Marston, as guarantor,
The trial court found that the only cause of action upon which plaintiff was entitled to recover against defendant, Central Alaska Fisheries Company, was the one which recited a transaction whereby W. H. Marston, on December 1, 1920, loaned said Central Alaska Fisheries Company the sum of $5,000, as evidenced by the latter’s promissory note to him, which note was thereafter assigned to plaintiff. Judgment accordingly went for plaintiff for the sum of $5,000 only, with interest. It is from that part of the judgment which limited the amount recoverable against said defendant to the note last above mentioned that the appeal was taken. Practically all of the indebtedness sued upon was evidenced by promissory notes made during the year 1921. A portion of said indebtedness had its inception in 1920, at a time when W. P. Springer was president and Peter A. Wagner, secretary-treasurer, and W. H. Marston, vice-president of Central Alaska Fisheries Company, and was carried into the transactions of 1921 in the form of renewal notes. Beginning with the year 1921, W. H. Marston became president, and his son, Otis Marston, secretary of said company. W. H. Marston and his son Otis were also contemporaneously president and secretary, respectively, of the W. H. Marston Company, a corporation. All of the said promissory notes executed by Central Alaska Fisheries Company to the First National Bank of Berkeley were guaranteed by W. H. Marston either by indorsement upon said notes or by a written contract of continuing guaranty executed by him. In most instances both methods of guaranty were adopted.
By the first cause of action, it is alleged that at the special instance and request and for the use and benefit of the Central Alaska Fisheries Company, W. H. Marston paid to said First National Bank of Berkeley the sum of money herein sued upon and assigned to plaintiff his claim and demand thereto. By the second cause of action it is alleged that at the special instance and request and for the use and benefit of the Central Alaska Fisheries Company, W. H.
The W. H. Marston Company owned considerable income-producing property, but had no bank account. It would seem that all of the income derived from its property was received by W. H. Marston and deposited to his account. The W. H. Marston Company borrowed upon its notes during the years 1920 and 1921 $130,000. Of this sum it would seem that $30,000 was furnished by the First National Bank of Berkeley, $50,000 by the Central National Bank of Oakland, and $50,000 by the Crocker National Bank of San Francisco, and the whole amount was deposited with the First National Bank of Berkeley and placed in the account of W. H. Marston. He paid all the taxes assessed against the W. H. Marston Company’s property and premiums on policies of insurance as they became due. When called upon to make good his guaranty of the Central Alaska Fisheries Company’s notes he responded by cheeks against his personal account. It appears that upon the death of Peter A. Wagner, who was a coguarantor with Marston of the Central Alaska Fisheries Company’s said indebtedness, W. H. Marston Company (and not W. H. Marston) filed, on December 7, 1921, a creditor’s claim against the estate of Peter A. Wagner totaling $83,000. The claim, which was filed more than three years before the commencement of the present
The court found as a fact that the Central Alaska Fisheries Company had not paid either to W. H. Marston or to the W. H. Marston Company any part of said sum of $123,-027.95 alleged by separate counts to be owing either to W. H. Marston or to the W. H. Marston Company, and it would follow therefrom that said obligation was never discharged by said Central Alaska Fisheries Company, but was actually paid at the latter’s request to said payee from moneys which, according to the only evidence in the record on the question, belonged to either W. H. Marston or the W. H. Marston
It was also specifically found that W. H. Marston, at the various times alleged, assigned and transferred to the W. H. Marston Company all his right, title, and interest in and to his claims against the Central Alaska Fisheries Company, including his claim and demand on each of said several promissory notes, but it was further found not true that said W. II. Marston Company thereby became the owner and holder of any of said notes. Finding No. XLVI is here pertinent. It follows:
“As to paragraph II of the twenty-fifth cause of action, the court finds:
“That it is true that on or about September 24, 1923', the said Central Alaska Fisheries acknowledged in writing to the said W. H. Marston Company that it was indebted to the said W. H. Marston Company as the assignee of said W. H. Marston in the sum of $123,027.95, alleged to have been paid out by the said W. H. Marston at the special instance and request of said Central Alaska Fisheries Company as alleged in the second paragraph of the first cause of action of said amended complaint, with interest upon said sum from December 30, 1922. It is likewise true that the said Central Alaska Fisheries, on or about September 24, 1923, promised in a writing signed by the said Central Alaska Fisheries, to pay to the said W. H. Marston Company as the assignee of said W. H. Marston the said sum of $123,027.95, with interest thereon at the rate of 7% per annum from December 30, 1922; and it is likewise true that no part of said sum or the said interest has been paid by the said company; but the court finds that it is untrue that said W., H. Marston ever paid out any sums of money as alleged in the second paragraph of said first cause of action of said amended complaint, and therefore the said W. H. Marston had no claim against the said Central Alaska Fisheries Company, Inc., which he could assign to said W. H. Marston Company, and the promise made by said Central Alaska Fisheries, Inc., to pay said sums of money to said W. H. Marston Company as assignee of said W. H. Marston was made without consideration,*721 and attempted to acknowledge an indebtedness which did not exist.”
If it be true that W. H. Marston, as found by the court, never paid out any sums of money at the special instance and request of the Central Alaska Fisheries Company to the First National Bank of Berkeley for the use and benefit of said Central Alaska Fisheries Company, as alleged in paragraph II of the first cause of action, and that no obligation of any character was created in favor of the W. H. Marston Company by reason of the payments made by it to said bank at the special instance and request of W. H. Marston “in order to discharge the liability of the said W. H. Marston as a guarantor of the obligations of said corporation” (Central Alaska Fisheries Company), as alleged in paragraph II of the second cause of action and found by the court to be true, it would follow that the obligation of the Central Alaska Fisheries Company to pay its indebtedness would go wholly discharged. If as a matter of fact W. H. Marston used moneys in his possession and under his control which belonged to the W. H. Marston Company with the permission and consent of the latter to pay his guaranty obligation, and said payment was also made at the request of the Central Alaska Fisheries Company and the payee, that would constitute a transaction between Marston and said Marston Company about which the Central Alaska Fisheries Company would have no legal ground of complaint. Nor could it repudiate its implied obligation to reimburse the payor. (Wheeler v. Bull, 131 Cal. 421, 425, 426 [63 Pac. 732].) 'Such a transaction would constitute a loan as between W. H. Marston and W. H. Marston Company, or at least a payment of money by the W. H. Marston Company to the use of W. H. Marston, and in either event an implied obligation on the part of W. H. Marston to reimburse W. H. Marston Company would be created. The evidence is without contradiction to the effect that W. H. Marston paid the Central Alaska Fisheries Company’s indebtedness from moneys deposited in his name and private account. All checks were so drawn and paid. It is very doubtful if there is any satisfactory evidence in the record that would justify a holding that the particular moneys used by W. H. Marston to pay said indebtedness were not his own. Surely there is no evidence tending to prove that he was not fully authorized to use
The doctrine reannounced in the above-cited case as the law of this state is “that full payment and performance
The assignment made by W. H. Marston to the W. H. Marston Company of his claim or right to reimbursement from the Central Alaska Fisheries Company was sufficiently specific to transfer his right to recover to another. “A thing in action is a right to recover money or other personal property by a judicial proceeding.” (Sec. 953, Civ. Code.) “A thing in action arising out of the violation of a right of property, or out of an obligation, may be transferred by the owner. ...” (Sec. 954, Civ. Code.) “Property of any kind may be transferred, except as otherwise provided by this article.” (Sec. 1044, Civ. Code.) No exception exists against the assignment of the right of reimbursement arising upon the implied promise of a principal to make his.surety whole.
We do not deem it necessary in the view that we take of matters presented to discuss the several equitable remedies open to a guarantor upon payment of his principal’s debt. Nor do we deem it necessary to decide whether or not the rule announced in Yule v. Bishop, supra, to the effect that where a debt is extinguished by the surety’s payment the debtor’s liability thereby comes to an end, and neither the doctrine of equitable assignment nor of subrogation can transfer it as a live, subsisting obligation, has been abrogated
We are of the opinion that the finding of the court to the effect that the W. H. Marston Company paid the indebtedness of which W. H. Marston was the guarantor, at his special instance and request, in the circumstances of the case, was equivalent to a finding that the relationship of creditor and debtor was thereby created, from which an implied promise at once arose on the part of W. H. Marston to repay the amount advanced by said company to meet his obligation. The evidence, however, without contradiction, shows that W. H. Marston drew the cheeks against his personal account that discharged the indebtedness owing by the Central Alaska Fisheries Company to said bank. If, on the other hand, Marston paid said indebtedness in his personal capacity, as he claims to have done, the assignment being sufficient would in either event entitle the plaintiff to a judgment for the full amount sued upon.
We think there is no merit in the claim that the court committed error in allowing a stockholder of defendant, Central Alaska Fisheries Company, to intervene as a party in interest. It is plain that unless he intervened no defense whatever would have been made by the cor-' poration defendant or by any person on its behalf. Neither was it error to deny the intervener the right to continue as a party after a failure of proof to sustain certain allegations of the complaint in intervention charging collusion on the part of plaintiff and the directors of defendant corporation. This was a matter largely in the discretion of the trial court, and its discretion seems to have been wisely exercised in view of the importance of the issues involved in the action.
The portion of the judgment appealed from is reversed.
Preston, J., Shenk, J., Langdon, J., Waste, C. J., and Curtis, J., concurred.
An application by appellant for an order directing judgment to be entered for appellant in accordance with the decision of the supreme court was denied by the supreme court on August 29, 1927.