Wright v. Schaaf

HOLLZER, J.,

pro

tem.

In 1923 the plaintiffs, trustees of an express trust, filed in the office of the county recorder of Santa Barbara County, being the county in which they were transacting business, the declaration of trust under which they were operating. At the same time they filed in •the office of the county clerk of said county a certificate, duly acknowledged, to the effect that as trustees of said trust they were transacting business under the fictitious name of County Finance Company. Said certificate set

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forth the name of each of the plaintiifs, also their respective residences, and was published once a week for four successive weeks during 1923 in a newspaper of general circulation published in said county. An affidavit of said publication was likewise filed in the office of said county clerk. By the terms of said declaration of trust plaintiifs as trustees were given not only the legal title to, but also unconditional power, control and discretion as if absolute owners, in acquiring, operating and disposing of the trust estate, including the power to sell beneficial shares, and also to determine what, if any, dividends were to be paid; the power of the trustees being subject only to the obligation to render an annual account to the beneficiaries.

At all times mentioned herein defendant Schaaf was engaged in business under the name Hitchcock Motor Company. On April 4, 1925, defendant entered into a conditional sales contract with one Weber, pursuant to which the latter agreed to purchase an automobile for $1107.75, payable in certain installments. On the same day defendant assigned this contract to plaintiifs by an instrument in writing, under which the defendant guaranteed payment of all moneys owing upon said contract, including reasonable attorney's fees, also waived presentment for payment, demand, protest and nonpayment, also agreed that, in case of nonpayment, suit might be brought against defendant without joining the purchaser of the automobile, and further agreed that the defendant’s rights and privileges should not be those of a surety or guarantor or an indemnifier, but that his obligation to the plaintiffs should be deemed absolute and unconditional, and should be enforceable even though the plaintiffs’ right to enforce said contract against the purchaser be suspended or impaired.