College National Bank v. Morrison

THE COURT.

An appeal from a judgment entered against defendants Morrison and Dam. Defendant Wetherbee was not served with summons, and Morrison defaulted. Defendant Dam answered the complaint and is the sole appellant.

On February 29, 1922, Morrison, by an instrument in writing designated a lease, agreed to sell and Wetherbee, who is therein called the lessee, agreed to buy a motor-truck for the sum of $2,600, payable $875 in cash and the balance in monthly installments of $172.50, with interest. Title to the truck was reserved by the seller, and the buyer agreed to pay the sum of $100 as attorney’s fees in the event of suit to recover any part of the amount payable under the contract. Thereafter, on March 7, 1922, Morrison and his wife borrowed $1500 from plaintiff hank, for which they executed their note, payable ninety days after date, with

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interest. With the note there was delivered to the hank the above lease contract, the note reciting that the lease contract was deposited as security for the payment of the note and also for “all other present or future demands of any and all kinds of the holder hereof against the undersigned. ’ ’ There was indorsed upon the contract at the time of its delivery to plaintiff the following, signed by defendants Morrison and Dam:

“I hereby guarantee the performance of the within lease on the part of the lessee to the College National Bank of Berkeley.

“Arch Morrison,

“F. I-I. Dam.”

The complaint alleged and the court found that there was due and unpaid on the lease contract a total of $1295.25, and of the principal and interest of the Morrison obligation to the bank the sum of $788.54, for which, with the further sum of $100 as attorney’s fees, the judgment was entered.

The evidence showed that $306.01 was paid on the note mentioned; that on June 7, 1922, Morrison and his wife executed to the bank a new note for $1153.99, on which the sum of $334.74 was paid, and that on October 7, 1922, Morrison executed to the bank a third note for $819.25, on which $200 was paid. Each note contained the same recitals as to the security. The two notes first mentioned were surrendered either before or at the time the third note was executed, and Mrs. Morrison was not made a party to the action.