Roush v. Kirkman

WASTE, P. J.

Plaintiff brought this action to collect a note for three thousand dollars, made by the defendants, who are engaged in the nursery business, to the First National Bank of Sanger, and which note was by the bank assigned to plaintiff. Defendants, answering, admitted the execution of the note, and alleged that the note, as delivered, contained on its back a guaranty of payment by the cross-defendants, E. H. Miller and Herbert Askin. Defendants deny that the bank sold, assigned, or delivered the note to plaintiff, or delivered the same to any other person than Miller, or Askin; deny that the plaintiff owns the note, and likewise deny that the note is unpaid, alleging that it has been fully paid by Miller and Askin.

By cross-complaint, by which said Miller and Askin are made cross-defendants, the defendants allege the making of an agreement of even date with the note, between themselves and the said Miller and Askin. In the agreement, which is set out in full, it is recited that the said cross-complainants are in need of certain money to carry on their nursery business; that said defendants and cross-complainants ■ will obtain three thousand dollars for that purpose from the First National Bank of Sanger, by means

[117]

of the promissory note in litigation here, a copy of the note, together with the guaranty by Miller and Askin being set up in the agreement; that, in consideration of the guaranty by Miller and Askin, defendants and cross-complainants agree to furnish “free gratis” to Miller and Askin two thousand trees of any variety which they may choose, then growing in the nursery of defendants and cross-complainants. In the event the nursery people have no available funds with which to dig and properly deliver the trees to Miller and Askin, the agreement continues, Miller and Askin are to advance the same. Furthermore, in case the latter advance any money for payment of interest on the note, they “shall, at their option, select from said nursery stock, so many trees as may be equivalent to the amount of money so advanced by them, allowing” the nursery people, defendants and cross-complainants, twenty cents (20c) per tree for each and every tree selected and taken by said parties, as therein provided. There is another stipulation to the effect that if the nursery people pay the note Miller and Askin shall be entitled to receive, and shall receive, two thousand trees only, and shall have the option of purchasing more trees for their personal use at a stipulated sum. It is agreed that if Miller and Askin are unable to accept the trees, the nursery people may continue to care for them until such time as, prior to August 1, 1916, Miller and Askin pay the sum of sixty dollars per thousand therefor. The latter are also given the right, on default of the nursery people, to enter the premises and select and secure the trees to which they may be entitled.