Wilkins v. Finnell

LANGDON, P. J.

This is an appeal by the defendants from a judgment against them as guarantors of a promissory note of a third party, which note defendants transferred to plaintiff’s assignors in consideration of its full face value and interest.

The facts are: Prior to June 30, 1921, defendants were co-partners engaged in the tractor business in San Jose, California. On said date they sold their business to Charles 0. Dean and A. M. Phillippe for $3,451.19. Among other items of property included in the agreement of sale was a promissory note of Thompson Bros, for $600, which had been given as a part of the purchase price of a tractor. Plaintiff is the assignee of Messrs. Dean and Phillippe and is claiming under an alleged oral guaranty of payment of said note made at the time the note was indorsed to Dean and Phillippe, or during the negotiations regarding the sale of the business. The trial court found in accordance with said claim “that with said assignment, sale and delivery of said promissory note, defendant did then and there guarantee the payment thereof to said Dean Tractor & Implement Co.”

The only question in the case is presented by defendants’ objection to the introduction of evidence of an oral guaranty. Respondent relies upon section 2794, subdivision 5 of the Civil Code. Defendants and appellants reply that the contract of sale was in writing and did not mention any guaranty of the said note, and that to receive evidence of an oral guaranty under section 2794 of the Civil Code would be to violate another rule of evidence, i. e., that the terms of a written agreement may not be varied by parol. The written agreement relied upon as a bar to the parol evidence is as follows:

“For and in consideration of the sum of $3451.19, Thirty four hundred Fifty-one and 19/100 Dollars, .as itemized on statement hereto attached, we hereby release our contract with The Cleveland Tractor Co., and all claims on any and

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all of the items which appear on said statement attached hereto.

“Very truly yours,

“Finnell-McEwen Co.

“By Phillip S. Finnell,