Menefee v. Robert A. Klein & Co.

LAMBERT, J.,

pro

tem.

On June 1, 1925, Arley F. Darnielle and Edna Darnielle executed a promissory note and trust deed on real property securing the same in favor of Robert A. Klein & Company. The note was .in the sum of $2,650, payable in installments of $35 per month with interest at eight per cent per annum. The note and trust deed were on July 7, 1925, sold to appellants by Robert A'.

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Klein & Company for $1842.87. The note and trust deed were transferred to appellants with the indorsement “Without recourse”. At the same time the respondent Robert A. Klein & Company executed and delivered to plaintiffs the following document-:

1 ‘ Guarantee.

“We, Robert A. Klein & Co. have sold this day to Richard P. and Anna P. Menefee, a Trust Deed Note secured by property, as of legal description on Trust Deed, executed by Arley F. and Edna Darniella, in the amount of $2,632.67, at Thirty per Cent Discount or $789.80, and hereby guarantee the said purchasers against any loss, or any expense, in the purchase of same.

“Signed, Robert A. Klein & Co.

“Robert A. Klein, Pres.”

After making six monthly payments on the note the Darnielles defaulted in the payments and appellants brought this action on the above guaranty. The case was tried by the court and judgment rendered in favor of defendants. Appellants prosecute this appeal, contending that the guaranty sued on is an unconditional guaranty. This contention cannot be upheld. “A guaranty is to be deemed unconditional unless its terms import some condition precedent to the liability of the guarantor.” (Civ. Code, sec. 2806.) “A guarantor of payment or performance is liable to the guarantee immediately upon the default of the principal and without- demand or notice.” (Civ. Code, sec. 2807.) “A guaranty to the effect that an obligation is good or is collectable, imports that the debtor is solvent and that the demand is collectable by the usual legal proceedings if taken with reasonable diligence.” (Civ. Code, sec. 2800.) Whether or not the condition contended for attached to the guaranty is to be determined by the language of the contract. (Ad