Henning v. Wuest

WASTE, P. J.

The plaintiff brought this action to recover the sum of $5,750, alleged to be due on a promissory note¡ executed and delivered to him by the defendant and E. A. Edmonds. Judgment was entered for the defendant. Motions were made for a new trial, and for the entering of a different judgment, on the ground that the facts found wore not sufficient to support the conclusions of law. Both motions were denied and the appeal is from the judgment.

The defendant interposed as a defense, and the court found, that on April 28, 1914, II. B. Tanner and John A. Watson, with the plaintiff as an accommodation maker, made and delivered a promissory note to the Marine National Bank of San Diego, payable sixty days after date, for the sum of $5,750; that thereupon, and on the same day, defendant and Edmonds executed and delivered to plaintiff, the note sued upon, also payable sixty days after date, to guarantee plaintiff against all liability by reason of his having joined, as accommodation maker, in the note of Tanner and Watson, to the bank; that the promissory note executed by Tanner and Watson 'to the Marine National Bank was paid in full and discharged by another note for the sum of $4,600, executed October 13, 1914, signed by Tanner and wife, Watson and wife, and plaintiff, payable ninety days after date, and certain payments of cash on account of principal and interest; that the defendant had no knowledge of the making of this last note; that he did not consent to the execution and delivery of the latter note as a renewal of the note of April 28, 1914; that the execution of the said renewal note altered

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the- obligation of the defendant upon the guaranty to plaintiff and suspended and impaired his rights in respect thereto. It was further pleaded and found that no liability on the part of plaintiff to pay the note to the bank ever attached and that plaintiff never paid anything by reason thereof and suffered no loss or detriment by reason of being an accommodation maker thereon.

The appellant concedes in his brief that “if appellant paid no money, and suffered no loss on account of his accommodation making of the note to the bankj and respondent’s contention as to the alleged agreement be true, then appellant should not recover.” He complains, however, of the action of the lower court in admitting parol evidence to show the nature of the real agreement between plaintiff and defendant, and of the alleged alteration of the defendant’s liability by the giving of the new note to the bank. He also contends that the findings are contradictory and not fortified by the evidence, and do not support the conclusions of law.