Thurber v. Fisher

THOMPSON (IRA F.), J.

On March 15, 1926, the defendants Fisher executed to the defendants Gire their certain promissory note in the sum of $2,500, payable in installments of $60 per month, which note was secured by a trust deed. On June 17, 1926, the defendants Gire transferred the note to Simon E. Hammer and Edna A. Hammer, with the following indorsement:

“For value received, we do hereby transfer and assign to Simon E. Hammer and Edna A. Hammer, his wife, as Joint Tenants, the within note, together with all rights accrued or to accrue under the Deed of Trust securing same so far as same relate to this note, and do hereby guarantee the payment of this note, and waive presentment, demand, protest and notice of protest.

“Earl C. Gire,

“Edna G. Gire.”

On May 24, 1928, the Hammers delivered the note to Anna R. Hope, their indorsement being without recourse. On May 31, 1928, Anna R. Hope delivered the note to plaintiffs herein, guaranteeing payment, and waiving presentment, demand and protest. The installment payment falling due on June 1, 1928, was not paid, nor were any of the other installments up to March 22, 1929, paid, on which last-named

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date respondents declared the whole amount of the note, principal and interest, due and caused the security to be sold by the trustee and the proceeds of the sale applied as provided in the note and deed, leaving a deficiency. On March 28, 1929, plaintiffs filed their complaint for the unpaid balance, making the makers of the note and all the indorsers and guarantors defendants. All of the defendants except Earl and Edna Gire allowed judgment to go against them by default. This is an appeal from the judgment in favor of plaintiffs.

Appellants contend that the evidence showed that an agreement was entered into between plaintiffs and the makers whereby the monthly payments under the note were to be reduced, and that this was such an alteration of the contract as to release appellants from their obligation as guarantors under section' 2819 of the Civil Code. The evidence relating thereto is as follows: ‘4 Q. After the payments were not made on the note, Mr. Thurber, what did you do? A. Why I rang up Mr. Gire and also had the bank notify Mr. Fisher, . . . Mr. Fisher said he would try to rent the house, he had moved out in the meantime, and agreed the rent would apply on the house, and a little later I went back, I left town for a while, and when I got back they had rented the house and used up some of the money on the repairing— . . . In the fall when I came back, I couldn’t locate Mr. Fisher, and the agent wouldn’t turn the money over to me and I started proceedings.” On cross-examination he testified: “Q. After you saw Mr. Gire you saw Mr. Fisher? A. Yes, sir. Q. At that time you told him you would take the rents from the place and apply them on the note, that would be satisfactory at that time? ... A. Sure. Q. You told Mr. Fisher? A. Yes, I told him I was willing to hold off a little bit until he got on his feet and tried to do something. Q. How much was the rent, do you know? A. About $33.50 a month.” Section 2819 of the Civil Code reads as follows: “A guarantor is exonerated, except so far as he may be indemnified by the principal, if by any act of the creditor, without the consent of the guarantor, the original obligation of the principal is altered in any respect, or the remedies or rights of the creditor against the principal, in respect thereto, in any way impaired or suspended.” The case of