Tyson v. Reinecke

RICHARDS, J.

This is an action on a guaranty. The appeal is by defendant from a judgment and from an order denying him a new trial. Defendant also appeals from an order refusing to dissolve an attachment.

Plaintiffs are assignees of Gage, Mills & Co., a partnership, and the action is brought for the reasonable value and the alleged contract price of lumber alleged to have been sold and delivered by said partnership to the Metropolis Construction Company, a corporation, and is founded upon a written instrument of guaranty signed by defendant in the words and figures as follows:

“San Francisco, Cal., Dec. 21st, 1909.

“Mss. Gage Mills & Co.,

“No. 2005 Market St., City.

“Gentlemen:

“In consideration of having delivered lumber & other materials & that you will continue to deliver same to the Metropolis Construction Co. of No. 24 Cal. St.—I hereby guarantee the payment—at due date—of all the accounts for goods already delivered & to be delivered to the above Construction Co. in the future.

“Yours truly,

“A. W. Reinecke.

“Witness: Louis P. Schwerdt.”

The answer admits the execution by the defendant of the said instrument of guaranty, but denies all the other material allegations of the complaint, and pleads exoneration of the guaranty under section 2819 of the Civil Code.

After trial, the court found in favor of the plaintiffs on all the issues and judgment was accordingly entered against the defendant for the sum of $6319.91, being the amount of plain

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tiffs’ demand and interest from the time of commencing suit to the rendition, of judgment. The defendant owned one share of stock in the Metropolis Construction Company. He was also, as he termed it, “accommodation treasurer” of the corporation, but performed none of the duties of that office. The partnership had been selling lumber to the corporation for several weeks, when W. L. B. Mills, a member of the partnership, prepared the instrument of guaranty here declared on, and sent it by Louis P. Schwerdt, a salesman of the partnership, to the defendant, with the request that the defendant should sign the same, which the defendant did. Originally, and for several months after the guaranty was made, the partnership was selling to the corporation “cash on sixty days.” Subsequently the corporation being slow in its payments the partnership refused to give the corporation sixty days’ time to pay its bills; and it was accordingly arranged between them that thirty days’ time should be given the corporation when if it could not pay, notes at between thirty days and sixty days would be accepted. Under this arrangement, the partnership accepted a series of notes from the corporation, commencing in May, 1910, and ending in November, 1910, which notes were payable in thirty, thirty-five, forty-five, and sixty days after date. The notes given by the corporation to the partnership to and including September,.