Mathes v. Bangs

JENNINGS, J.

Plaintiff brought this action to recover a balance due and unpaid on a promissory note executed .by defendant Adelle M. Bangs and the indorsement thereon signed by defendant Katheryn Sinnige. The complaint alleged that the note was executed on July 3, 1929; that Katheryn Sinnige was named as payee therein; that payment of the note was secured by a certain deed of trust; that such security had been wholly exhausted prior to the institution of the action; that prior to its maturity the note was indorsed and transferred by the payee to plaintiff;

[172]

that at the time the note was transferred to plaintiff, the payee in addition to indorsing the note and for the purpose of inducing plaintiff to purchase the note, unconditionally guaranteed to plaintiff the payment of all sums mentioned therein; that plaintiff, in consideration of said guaranty and the transfer of said note to him purchased the note from said payee and paid to said payee the sum demanded by her; that after the note was thus transferred it became due and payable; that the real property covered by the deed of trust was duly sold and the proceeds of such sale applied upon the note, leaving due and unpaid the balance for whose recovery the suit was brought. The defendant Adelle M. Bangs made no appearance in the action and judgment by default was duly entered against her. Defendant Katheryn Sinnige filed an answer to plaintiff’s complaint and upon the issues raised by the pleadings, the action proceeded to trial. Upon the conclusion of the trial judgment was rendered in favor of defendant Katheryn Sinnige. Prom the judgment thus rendered and from the order denying his motion for a new trial plaintiff appeals.

The single question presented by this appeal is whether appellant was entitled to prove by parol evidence that, at the time the note was indorsed and transferred to him, the respondent verbally guaranteed payment of the note. Appellant’s offer to make such proof was refused by the court upon objection by respondent that it was inadmissible because it amounted to an attempt to vary the terms of a written contract. Respondent’s indorsement which furnished the basis for the court’s refusal of the proffered evidence is in the following form:

“San Diego, California, 7-28-30.