Tremayne v. American SMW Corp.

McCOMB, J.

From a judgment in favor of plaintiff in an action to recover upon a written guaranty of an account, after trial before the court without a jury, defendants Timothy L. Woods and James Woods, hereinafter referred to as defendants, appeal.

Facts:

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Defendant American SMW Corporation became indebted to plaintiffs’ assignor for goods, wares and merchandise furnished to said defendants in the sum of $7,533.14. Defendants guaranteed the foregoing account by a writing reading as follows:

“In consideration of the extension of credit to American SMW Corp., whose business is conducted at 118 W. 5th Street, Santa Ana, California and in which corporation we are financially interested, we hereby, jointly and severally, guarantee to Mahl Manufacturing Co. payment when due of its account with said American SMW Corp.

“We hereby waive notice of nonpayment and notice of failure of collection of said account. This is a continuing guarantee and shall be in force and effect until cancelled in writing.

“In witness whereof we have hereunto set our hands and seals in the City of Los Angeles, State of California, this 5th day of September, 1950.”

The foregoing guaranty was not cancelled by defendants prior , to the time the above mentioned indebtedness was incurred.

Question: Was this finding of the trial court sustained by substantial evidence:

“That it is not true that defendants Timothy L. Woods and James Woods cancelled their written guaranty by serv

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ing on plaintiff’s assignor a notice in writing of cancellation of said written guaranty”?

Yes.

Defendants introduced evidence that a letter cancel-ling their guaranty duly stamped and addressed to plaintiff was deposited in a United States mail box in the City of Los Angeles on December 14, 1950, between the hours of 8 and 9 p. m., and that the letter had a return address on it but vs as never returned to them.