Berkowitz v. Tyderko, Ltd.

GOULD, J.,

pro

tem.

By instruments dated September 30, 1930, defendant Tyderko, Ltd., sold to one Braunstein certain real property for $30,800, the purchase price payable on or before one year. The purchaser gave back a third deed of trust upon the property sold for the full amount of the purchase price, and as further security for the payment by Braunstein of the purchase price plaintiff and her husband, the latter since deceased, gave to the vendor two notes in the aggregate sum of $30,800, secured by deeds of trust upon real property. The agreement signed by plaintiff recited that the note and deeds of trust were given “not only as security for the payment ... of the purchase price of $30,800 . . . but also as an inducement for [Tyderko, Ltd.] ... to make said sale to the said . . . Braunstein”. When the purchaser failed to make payment upon the principal obligation defendant vendor initiated proceedings for the sale of the properties under the Berkowitz deeds of trust. This action to enjoin the sale, for cancellation of the Berkowitz deeds of trust and and notes and to quiet plaintiff’s title to the real property de

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scribed in the deeds of trust followed. Judgment went for defendants and plaintiff appeals.

The entire controversy arises from a letter dated October 6, 1930, given by the president of Tyderko, Ltd., to the purchaser, Braunstein, in which the latter was informed that if a payment of $5,000 on account of the purchase price of $30,800 was made on or before one year after September 30, 1930, and no other defaults existed, then a “grace period” of six months from and after September 30, 1931, would be allowed for payment of the balance of the purchase price principal. By granting this six months’ extension in the payment of the principal obligation without her consent or knowledge, appellant claims that she as surety was thereby released.

The trial court found that the transactions between the parties represented by the various instruments dated September 30, 1930, became fully operative and binding before the letter of October 6. There was substantial evidence in support of this finding, the September 30th papers all having been signed before October 6th, jand according to the testimony of at least one witness having been delivered and placed in escrow several hours before the writing and delivery of the letter of October 6th. • The determination of this fact being binding upon appeal, it follows that the letter of October 6th was not a part of the original transaction of sale, and to constitute an alteration of the original agreement so as to relieve the surety would have to be supported by a separate consideration. The writing itself carries the presumption of a consideration, but this presumption may be overcome by testimony to the contrary.