Dozier v. National Borax Co.

RICHARDS, J.

This is an appeal from a judgment in favor of plaintiff for the sum of two thousand seven hundred dollars and costs in an action to recover said sum upon an alleged written contract upon which the appellant- Dake was a surety.

The facts of the case, in so far as they are undisputed, are as follows: The appellant L. W. Dake and one Max P. Fries were interested together as stockholders and directors in the National Borax Company, a corporation, of which the said Max P. Fries was president and manager. In the month of February, 1913, a transaction was pending between Max P. Fries, as president of the National Borax Company, and M. R. Dozier, the plaintiff and respondent herein, involving an exchange of certain corporate stock, in which transaction, when the terms thereof were reduced to writing, the plaintiff had insisted that the said L. W. Dake should sign such writing ás a surety for the performance of the agreement which was to be contained therein. On February 13, 1913, Max P. Fries requested said Dake to sign and acknowledge, and the latter did sign and acknowledge, the following document:

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((_________

U___

“One year after date upon demand, we or either of us,

hereby agree to deliver to-, -shares of

the capital stock of the California State Life Insurance Company, upon surrender to the undersigned or either of them,

of his certificate of-shares of the capital stock of

the National Borax Company.

“(Corporate seal) National Borax Company,

“Max P. Fries,

“Pres. & Gen’l Mgr. “L. W. Dake.

“(Acknowledgment of L. W. Dake.)”

■ This agreement in blank, when so signed by Dake, was delivered by him to Fries, who took the same to Woodland, the home of the plaintiff, and there the transaction was consummated between himself, acting on behalf of the National Borax Company, and the plaintiff, the said Fries, writing into the above document as executed by Dake words which caused it to read as follows: