Frudden v. Peppers Fruit Co.

SPENCE, J.

Plaintiff furnished groceries to one J. M. Islas and sought to recover the balance due therefor from the defendant corporation. From a judgment in favor of plaintiff, defendant appeals.

Plaintiff based his claim against the defendant corporation upon a written guaranty of the account of said J. M. Islas, which guaranty was executed in the name of the defendant corporation on March 2, 1931, by one J. L. McMahon, an employee of the defendant corporation. This guaranty was revoked in writing by said J. L. McMahon on March 21, 1931, at which time Islas was indebted to plaintiff in the sum of approximately $380. Thereafter plaintiff continued to extend credit to Islas and received payments from him in excess of the balance due at the time of the revocation of the guaranty. Islas failed to pay his account in full and plaintiff brought this action against the defendant corporation.

Plaintiff alleged in his complaint that the defendant executed a “guarantee in writing . . . whereby the defendant agreed to answer for the debt of J. M. Islas . . . ”; that plaintiff thereafter “sold and delivered to said J. M. Islas” merchandise of the value of $1,150.69, of which Islas had paid $530.14, leaving a balance of $620.55; that plaintiff demanded said balance of said Islas but he failed and refused to pay any part thereof; and that thereafter plaintiff demanded of defendant that it pay said balance but it failed and refused to do so. By way of answer defendant denied among other things that it executed any guaranty and alleged that said J. L. McMahon was not authorized in writing or otherwise to execute the purported guaranty. The trial court made findings in favor of plaintiff and against defendant on the issues thus made by the pleadings.

In our opinion the judgment of the trial court must be reversed. The agreement to answer for the debt of said

[546]

J. M. Mas was required to be in writing (Civ. Code, secs. 1624, 2793), and as said J. L. McMahon was merely an employee or agent of the appellant corporation, his authority to execute the written agreement was likewise required to be in writing. (Civ. Code, sec. 2309;

Clement

v.