Wolf v. Brakebill

SHAW, J.

The first of these actions was brought by plaintiff to recover a balance upon two promissory notes made to him by defendants. In the second action, plaintiffs Chas. Thompson and C. B. Williams (made defendants in the first) sought a decree to have the notes constituting the subject of the first action canceled and annulled. In both actions defendants B. Brakebill and Mrs. B. Brakebill suffered default. The grounds of defense pleaded by Thompson and Williams to the recovery sought upon the notes are substantially the same as those set forth in their complaint to have the notes canceled and annulled. By stipulation of the parties the two actions were consolidated for trial, as a result of which trial it was adjudged and decreed that plaintiff in the first action have judgment for amount of the notes sued upon, and that Thompson and Williams, plaintiffs in the second action, take nothing thereby.

From the judgment so entered, and an order of court denying their motion for a new trial, Thompson and Williams appeal.

The complaint upon the notes was in the usual form, setting forth copies thereof, signed “Mrs. B. Brakebill, B. Brake-bill, Chas. Thompson, C. B. Williams,” as makérs thereof.As a defense to recovery thereon, and also as grounds for the decree asked canceling and annulling the same, Thompson and Williams alleged that their signatures to the notes, as accommodation makers and sureties, were procured by fraud and misrepresentation of Wolf, Castle Bros., Wolf

&

Son.

It appears that W. H. Wolf was president of Castle Bros., Wolf & Son, a corporation which owned a wholesale cigar-

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house in Los Angeles, of which business B. Brakebill had for about a year prior to August, 1911, been in charge as manager thereof, and as such was under bond in the sum of one thousand dollars for a faithful discharge of his duties. About August 8, 1911, Mr. Wolf came to Los Angeles from San Francisco, where the main business of the corporation was conducted, and found among the outstanding accounts for goods sold by Brakebill one appearing against a Mr. Inman for $1,394.18, which the latter claimed he had paid, and exhibited what purported to be receipted bills showing payment of some six hundred dollars on said account. Wolf told Brakebill the result of his interview with Inman, and expressed a desire for immediate settlement. Thereupon Brake-bill proposed to buy the stock of goods and business, stating that he could secure parties to join him in giving a note for the purchase price. Upon Wolf indicating his willingness to effect a sale upon such conditions, negotiations followed, as a result of which the fixtures, stock in trade, business, and goodwill of the House of Manila wore sold and by bill of sale transferred to Mrs. B. Brakebill for the sum of $5,485.74, which was the value of the goods agreed upon between thé vendor and purchaser. At the same time Wolf sold and assigned to Mrs. B. Brakebill the Inman account of an agreed price of $1,394.18. In consideration of such transfer the promissory notes constituting the subject of this action were delivered to Wolf, who received them in full payment of the purchase price of the property sold to Mrs. B. Brakebill.