Booth v. Friedman

STURTEVANT, J.

Claiming that M. S. Eisner, deceased, was at the time of his death under obligation to pay the plaintiff certain moneys, the plaintiff commenced this action against the defendants as executors of the estate of the deceased. The trial court made findings in favor of the plaintiff and a judgment in accordance with those findings was entered. From that judgment the defendants have appealed and have brought up a bill of exceptions. On the appeal the appellants attack certain findings as not being supported by the evidence. Before taking up a consideration of those attacks it is necessary to recite some of the facts.

Prior to the year 1920 the Novelty Products Company, a corporation, had been engaged in the manufacture of toys. It had a paid-up capital of $100,000. B. D. M. Greene was president and manager. Under his solicitation $2,500 of the stock was sold to M. S. Eisner, deceased, and $2,500 was sold to F. E. Booth and $2,500 was sold to H. G. Maxson. B. D. M. Greene was the holder of $45,000 and other stockholders each held $2,500, more or less, making in all about twenty-five stockholders. In January, 1920, the Novelty Products Company owed the Bank of Italy on certain promissory notes. The bank was asking for security. On that

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date, after certain conversations held, F. B. Booth, M. S. Eisner, and B. D. M. Greene signed a written guaranty in the sum of $10,000 in which they recited, “we hereby promise and agree to pay to you at any time upon demand, in United States gold coin, the full amount of principal and interest due to you from said the Novelty Products Company at the time of said demand, not exceeding the sum of $10,000.” On March 14, 1920, F. E. Booth was in Europe and a similar paper in the sum of $5,000 was signed by M. S. Eisner and B. D. M. Greene. On May 17, 1920, under similar circumstances the latter two signed another guaranty in the sum of $3,000; Later, when F. E’. Booth had returned, the bank asked that it be given one guaranty and that the others be taken up. On November 12, 1920, a document identical in form, but in the principal sum of $18,000, was signed by F. E. Booth alone and was delivered to the bank and thereupon the bank surrendered the three guaranties for $10,000, $5,000, and $3,000 respectively. Thereafter F. E. Booth was compelled to pay the bank. Having paid the bank, he made his claim to the executors to be reimbursed to the extent of one-third of the amount so paid by him. The claim was rejected and thereupon he brought this suit and in his complaint he pleaded his cause of action in accordance with the claim theretofore presented by him.