Tischhauser v. Prentice

CONREY, P. J.

The defendants W. J. Bryant and Lorenzo D. Swartwout appeal from an order denying their motion for a new trial. The judgment is founded upon a note for $623, payable to the plaintiff and signed by the defendants Prentice, Bryant, and Swartwout. As stated by counsel for appellants, their chief contentions are that they signed the note and delivered the same to their co-obligor Prentice on a condition which was not performed; that the consideration for the note was illegal; and that their signatures were obtained by fraud exercised by defendant Prentice in procuring such signatures.

At the trial appellants amended their answer and thereby alleged that at the time of accepting the note the plaintiff had full knowledge of the circumstances attending their execution of the note, and knew that the defendants signed said note merely as sureties thereon, and agreed to deal with them in the capacity of sureties and not as principals. But it was admitted at the trial that the note was delivered to plaintiff without knowledge on his part that its delivery was contrary

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to any instructions given by appellants to Prentice, and their counsel state in their final brief that the law of suretyship and the fact that appellants were sureties “are almost foreign to this case.”

The facts- are that prior to the execution of this note the defendant Prentice was in debt to plaintiff in the sum of $623, which is the principal sum named in the note. The plaintiff was pressing for payment and at the same time a criminal action against Prentice was pending in the police court of the city of Los Angeles under complaint charging Prentice with having obtained money by false pretenses, and the plaintiff John Tischhauser was the complaining witness in that action. Appellants by their answer in this action alleged that the note in suit was delivered to plaintiff and'accepted by him in consideration of his desisting from further prosecution of Prentice on said criminal charge. There is some evidence in the record tending to support this defense, but there is also substantial evidence to the contrary, and the charge was flatly denied by the plaintiff.- Therefore, the court’s finding of fact is conclusive, and appellants in further urging illegality of consideration as a ground for sustaining their appeal are contending in vain against established facts.