Adler v. Sawyer

HAVEN, J.

Defendant appeals upon the judgment-roll alone from a judgment rendered against him in an action upon a written contract of indemnity. On August 18, 1911, in consideration of the payment of three thousand dollars, the defendant sold and transferred to plaintiff a certain promissory note in that amount, dated July 17, 1909, the payment of which was secured by a deed of trust. On September 22, 1911, defendant executed and delivered to plaintiff the contract sued upon. That document recites the prior sale of the note to the plaintiff, the receipt of the consideration by the defendant, the fact that statements had been made as to the possible invalidity of the note, and concludes as follows: “Said F. W. Sawyer hereby agrees to protect said Charles Adler against any and all possible loss or damages that he may sustain by not being able to in any manner realize the full benefits of note and trust deed or to recover She full amount of said note and trust deed from any reason, whatever, arising out of the transaction.”

[780]

Appellant contends that this contract is one of guaranty and, as such, it is unsupported by a sufficient consideration, for the reason that it was not entered into at the same time as the original obligation and did not form a part thereof, and that the record shows there was no distinct consideration therefor as required by section 2792 of the Civil Code. The argument is based upon the allegations of the complaint and the findings, a portion of which are set forth in appellant’s brief. The full record on this matter is; as follows:

In the complaint it is alleged: “That subsequent to the transfer of the said note and of the said deed of trust by the said defendant F. W. Sawyer to the said plaintiff Charles Adler above mentioned and alleged, said defendant F. W. Sawyer and the said plaintiff Charles Adler entered into a certain agreement in writing, wherein and whereby for the original consideration paid by the said Charles Adler to the said defendant F. W. Sawyer for the transfer of the said note and- of the said deed of trust and for other reasons expressed therein, the said defendant F. W. Sawyer agreed to protect the said Charles Adler against any and all possible loss for damage that he might sustain, ’ ’ etc. In his answer the defendant "denies: “That the alleged agreement in said complaint alleged to have been entered into between Charles Adler and defendant F. W. Sawyer, was entered into for any other consideration than is expressed in said agreement.” Upon this issue the court found: “That all of the allegations of plaintiff’s complaint on file herein are and each of them is true and correct, and fully sustained by the evidence, and the court further finds that there was a good and sufficient and valuable consideration for the making and execution and delivery of all of the written instruments particularly described in plaintiff’s complaint.” (The contract sued upon was one of the instruments thus referred to.) “And the court further finds that the .defendant, Sawyer, for a good and sufficient and valuable consideration on the twenty-second day of September, 1911, agreed to protect plaintiff against any and all possible loss or damages that plaintiff might sustain by not being able to in any manner realize the full benefits of the note and trust deed described in plaintiff’s complaint, or to recover the full amount of said note and trust deed from any reason whatever.”