Hutcheson v. Towne

[113]

NOURSE, J.

This action was commenced on August 1, 1916, by J. D. Fuller as the holder by assignment of certain claims against one' La Rue upon the alleged promise of thq defendant Towne to pay such claims. On the first trial of the action judgment went for the defendant and on plaintiff’s appeal therefrom the judgment was reversed by the supreme court.

(Fuller

v.

Towne,

184 Cal. 89 [193 Pac. 88].) On the second trial judgment went for the plaintiff Robert Hutcheson, who had theretofore been duly substituted for J. D. Fuller, who had died subsequent to the commencement of the action. From this judgment the defendant appealed upon the judgment-roll and a bill of exceptions.

The facts of the case are fully stated in the opinion of the supreme court on the first appeal and no new facts were developed at the second trial. The findings of the trial court at the conclusion of the second trial find those facts as stated in the opinion of the supreme court to be true. This opinion was, therefore, the law of the case and compelled judgment in favor of the plaintiff.

On this appeal the appellant urges but three points which require consideration. First, that the suit was prematurely filed; second, that the amended complaint does not state a cause of action because it does not show any consideration for the defendant’s promise to pay; and, third, that the defendant made but one agreement in which he promised tq pay and that was before he undertook the completion of the building.

The first point is based upon the theory that the appellant at some stage of the negotiations promised to execute a promissory note secured by a mortgage to pay the claims of La Rue’s creditors, and it is argued that this promise constituted an equitable mortgage which could be enforced only by suit to foreclose. There are' two answers to this point: first, that the appellant positively denies ever having made such a promise; and, second, that if any such promise were made it was not in writing and hence did not constitute an equitable mortgage.

(Hall