Williams v. Parker

CONREY, P. J.

The defendants appeal from the judgment, and from an order denying their motion for a new trial.

On July 1, 1908, defendant Parker executed in favor of the Merchants and Insurers Reporting Conlpany, a corporation, a so-called promissory note for the principal sum of one thousand dollars, bearing interest, and payable on or before five years after date. The note recited the fact of deposit with the payee of one hundred shares of stock in said corporation as security for the payment of the obligation. It was further provided therein “that the Merchants and Insurers Reporting Company has the right to call for such additional security as it may deem proper, and on failure to respond forthwith to such call, the obligation shall immediately thereon become due and payable; or on the nonperformance of this promise, the said payee, its president, or secretary, or assigns, is and are hereby given full power and authority to sell, assign, and deliver, or collect the whole or any part of the above-named securities, or any substitute therefor, or any addition thereto, at public or private sale, at any time or times hereafter, without demand, advertisement or notice, such demand, advertisement or notice being hereby expressly waived.” The defendant Youtz guaranteed the payment of said note by the following indorsement thereon: “Each of the undersigned hereby guarantee payment of the within note, waiving demand, presentment for payment, protest and notice of protest. J. E. Youtz.” This note was assigned by the payee to the Bankers Eire Insurance Company,

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a corporation, and was thereafter assigned by that corporation to the plaintiff. The assignment to plaintiff was not for a valuable consideration, and was merely for the purpose of collection. After the note became due, and on the fifteenth day of October, 1913, the pledged shares of stock were by the plaintiff sold at public auction, after notice by publication as required by section 3005 of the Civil Code, and without actual notice to the defendants. At that sale the shares of stock were purchased by an attorney of the plaintiff as trustee for the Bankers Fire Insurance Company, paying therefor the sum of one dollar, which was less than the expenses of the sale, and resulted in no payment of any part of the principal or interest due on the note. Immediately after the completion of said sale, notice thereof was served upon each of the defendants, with demand for payment of said sum of one thousand dollars, with the accrued interest thereon, less forty-five -dollars interest paid on April 1, 1909. The note was not paid, and this action was commenced on the following day.