Turton v. Shinn

California Court of Appeal Feb 8, 1917 No. Civ. No. 1605.Published

Before: Chipman

AI Brief

AI-generated · verify before citing

Holding. The court held that a guarantor's denial of the existence of the guaranty relationship in their answer excuses the plaintiff from the contractual requirement of making a formal demand for payment prior to filing suit. Furthermore, the evidence supported the trial court's finding that the defendant's offer to guarantee the lease was not rejected or conditionally accepted in a manner that invalidated the contract.

Issues

Whether the evidence supported the trial court's finding that the defendant's guaranty was validly accepted by the plaintiffs.
Whether a formal demand for payment was a necessary condition precedent to the action when the defendant denied the existence of the guaranty in their answer.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The law does not require a useless act to be performed; and when it is plain from the answer that if a demand had been made it would have been refused, it does not lie in the mouth of the defendant to object that no demand was made.”

“There is an entire failure of proof in support of appellant’s answer, and hence the finding that its “averments are not true” was justified.”

Synopsis

The facts are stated in the opinion of the court.

CHIPMAN, P. J.

The action is against defendants as guarantors of a certain lease executed by plaintiffs as lessors and the Morgan Shoe Company, a corporation, as lessees, the premises being situated at No. 801 K. Street, in the city of Sacramento.

The guaranty reads as follows:

“In consideration of the foregoing lease or agreement, and one dollar to me paid, the receipt whereof is hereby acknowledged, we do hereby covenant, promise and agree, to and with the said Nellie Turton and Kate Turton that the said Morgan Shoe Company, a corporation, shall well and truly pay all rents and perform and execute all the covenants therein contained on its part, and that on its failure to do so in any particular will on demand pay unto said Nellie Turton and Kate Turton all rents or damages that may happen or occur by reason of such failure, not exceeding the sum of fifteen hun

[752]

dred dollars, and immediate notice of default is hereby expressly waived.

“Dated and signed on this 29th day of September, 1913.

“C. G. Shinn.

“H. S. Baxtbr-Hooper.

“Dave Ahern.”

“Signed, sealed and delivered in the presence of

“A. L. Shinn,

“A. B. Erway,

“H. F. DeBack.”

The complaint is verified.

Answering the complaint, defendant Shinn denied that he together with the other alleged guarantors “subscribed or delivered to the plaintiffs an agreement guaranteeing the payment of all or any rents or damages that might happen or occur by reason of the failure of the Morgan Shoe Company to pay the said rent,” etc.; averred that defendant affixed his signature to said instrument, and it “was thereupon presented by the Morgan Shoe Company to plaintiff for acceptance”; that plaintiff refused to accept defendant as guarantor and defendant was forthwith notified by said company of said refusal; that said company “thereafter obtained the signatures of said Hooper and Ahern to said instrument as the guarantors of the rents and damages as aforesaid. That plaintiffs accepted the said Hooper and Ahern as the only guarantors of said rents and damages, and plaintiffs ever since said acceptance have treated with the said Hooper and Ahern as the only guarantors of the said rents and damages”

Turton v. Shinn

AI Brief

Synopsis

CHIPMAN, P. J.

More from California Court of Appeal

Related research

AI Brief