Hellmuth v. Boos

STURTEVANT, J.

This is an action on a promissory note. Judgment went for the defendant Marguerite Brandt, and the plaintiff has appealed under section 953a of the Code of Civil Procedure.

In the language of the pleadings the trial court found:

“1. That the promissory note set out in plaintiff’s amended complaint was signed by 'defendant Marguerite Brandt as surety and not otherwise, and the fact that she so signed said promissory note as surety was at the time hereof, ever since has been and now is known to said plaintiff and said plaintiff at the time of the execution of said' promissory note consented to deal and did deal with said defendant Marguerite Brandt in the capacity of surety upon said promissory note. That said Marguerite Brandt never received any consideration for her signature thereto and that the full consideration for said promissory note was One Thousand Dollars ($1000) and no more.

“2. That the above named plaintiff commenced an action against the above-named defendants in the Superior Court of the State of California, in and for the County of Fresno, on the 28th day of September, 1923, which said action was and is numbered in said court 32,447, to obtain judgment

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against said defendants for the full sum of Fifteen Hundred Dollars ($1500), together with interest thereon at 8% per annum from the 2d day of January, 192'3, less the sum of $25.00, which had been previously paid thereon, together with attorney’s fees, that said action was subsequently tried in said Superior Court, and upon said trial said court found that said promissory note and said loan represented thereby was and is usurious, and judgment was entered accordingly.

“3. That in said action, numbered 32,447, commenced as aforesaid, plaintiff, in due process, caused writ of attachment to be issued and the property of defendants David Boos and August Boos, Jr., was attached thereunder. That prior to said trial of said cause, and while said attachment was in full force and effect, this plaintiff, defendants August Boos, Jr., and Annie Boos, his wife, and David Boos and Katie Boos, his wife, and for the purpose of extinguishing the obligation of each and all of the defendants herein by reason of the execution of said promissory note, agreed that, in the place and stead of and as a substitution for said promissory note sued on therein, and which is the same promissory note set out in plaintiff’s amended complaint herein said defendants August Boos, Jr., and Annie Boos, his wife, would execute to plaintiff a new and different promissory note for Fifteen Hundred Dollars ($1500) to become due November 1, 1924, bearing interest at the rate of 8% per annum, and as security for the payment of said promissory note due November 1, 1924, would execute a crop mortgage, to plaintiff, upon the crops to be grown during the season of 1924, on the South Half of Lots 191 and 192 in Perrin Colony, in the County of Fresno, State of California, and that in addition to said promissory note secured by said mortgage plaintiff was to receive, in cash, the sum of Three Hundred Thirty-nine Dollars ($339.), That pursuant to said agreement said defendants August Boos, Jr., and Annie Boos, his wife, did execute to plaintiff for and in the place and stead of said promissory note sued upon in said prior action, and set out in plaintiff’s amended complaint herein, a new promissory note in the sum of Fifteen Hundred Dollars ($1500), due November 1, 1924, bearing interest at the rate of 8% per annum, and as security for the payment thereof executed to plaintiff