Ebner v. West Hollywood Transfer Co.

LANGDON, P. J.

This is an appeal by the defendants, West Hollywood Transfer Company and P. Steffenson, from a judgment against them in an action to recover upon three promissory notes of the defendant corporation, and the guaranties by the individual defendants. The defendant G. U. Barek agreed, in open court, that judgment might be entered against him as such guarantor.

The principal objection of the appellants is that the notes upon which suit was brought were not admitted in evidence by the trial court, and that as the suit was upon the notes, and the guaranties written upon the backs thereof, there was nothing before the court upon which its judgment could be based. It appears from the record that the notes were offered several times by the plaintiff; they were marked for identification, but no ruling was made thereon and the notes were not admitted in evidence during the trial of the case. It is argued by the respondent that the notes should have been admitted in evidence and that the court, at the time it arrived at its conclusion, so decided and admitted the notes in evidence at the time it gave judgment for the plaintiff.

It appears from the record that the notes upon which the judgment is based were signed by the West Hollywood Transfer Company, by G. U. Barek, president, and P. Steffenson, secretary. There was no seal of the corporation attached thereto, and there was no showing made by the plaintiff that the president and secretary had authority to sign these notes. The notes were set out in the complaint. The answers of the appellants deny that the corporation made the notes, but admit that Barek, claiming to act as president, and Steffenson, claiming to act as secretary, of the company, did execute the said documents set out in the complaint. The answers also deny that Barek was authorized by the corporation to' execute said notes, but do not deny the authority of Steffenson. There is also a denial that the corporation ever delivered the notes. While it is true that the authority of the president and secretary to execute these notes was not shown, there were other facts

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shown which would estop the corporation from denying the due execution and delivery of the notes. It was shown that G. U. Barck was the president and P. Steffenson was the secretary of the corporation at the time the notes were signed. It was shown that the corporation had previously purchased certain property of the Hollywood and Los Angeles Daily Express Company, for which property it had given its note, dated April 17, 1915, in the sum of $6,903.50, to the plaintiff. At the time this note was given, the defendant G. H. Barck was the president of the corporation and one C. B. McCall was the secretary thereof. In August, 1916, this note remained unpaid, and at that time the defendant Steffenson purchased an interest in the Transfer Company. At this time he received the stock of the company held by McCall, and gave his check for three thousand dollars, which was deposited to the credit of the company and used to pay its debts. He also, at this time, together with Barck, guaranteed the notes sued upon in this action, which notes were given in payment of the old note of the company for $6,903.50, which note was, at that time, marked “paid” and returned to the company. Said canceled note for $6,903.50 was introduced in evidence by the plaintiff and was admitted to have come from the custody and control of the defendant company. [1] It therefore appears that the notes sued upon here were given by the company for a valid and subsisting indebtedness; that, as a consideration therefor, the company received its former note, canceled, which had been given for the purchase of certáin property. The corporation has retained and enjoyed the benefits of the transaction. The giving of the notes in suit was not an