Pacific Railways Advertising Co. v. Carr

SHAW, J.

Action to recover upon a promissory note made by defendant to plaintiff. The case was tried before a jury, which brought in a verdict for defendant. .Judgment followed in accordance therewith.

Plaintiff appeals from an order of court denying its motion for a new trial. While admitting the making of the note and nonpayment thereof, defendant insists there was no consideration for its execution. The note was given in renewal of one theretofore executed by defendant to plaintiff under the following circumstances: Under a purported contract made by plaintiff with a corporation known as the Amritam Company there was, on August 21, 1912, claimed to be due to plaintiff from the latter company the sum of $442. This contract was executed on, behalf of the Amritam Company, without the corporate seal affixed thereto, by J. S. Benner, secretary and treasurer thereof. No authority was ever conferred upon him to execute such contract; nor was ■ there any ratification thereof. After the alleged liability had been so incurred, defendant acquired an interest in the Amritam Company, and

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upon being informed by said Benner, secretary of the company, that the contract constituted a binding obligation of the company, she accompanied him to the office of plaintiff and agreed to assume the alleged indebtedness based upon said proposed contract, then past due, and as evidencing such agreement she executed her note upon the maturity of which she, in renewal thereof, executed the note here involved. Whereupon, plaintiff released said Amritam Company from liability upon the contract.

Conceding the contract was not an obligation of the Amritam Company, as to which there seems to be no doubt

(Black

v.

Harrison Home Co.,

155 Cal. 121, [99 Pac. 494];

Oscar Bonner Oil Co.

v.

Pennsylvania Oil Co.,

150 Cal. 658, .[89 Pac. 613];