Lytle v. Allison

[36]

ALLEN, P. J.

The action was based upon the following contract entered into between plaintiff’s assignor and defendant:

“Fairbanks, Morse & Company.

“Los Angeles, Cal., Oct. 8, 1910.

“For and in consideration of one dollar, to me or us in hand paid, the receipt of which is hereby acknowledged, and the further consideration that Fairbanks, Morse

&

Company, extend credit to Weber-Duller Co., I, or we, the undersigned, do hereby guarantee and agree to pay to Fairbanks, Morse & Co., any and all amounts that may be owing to it by Weber-Duller Co., including amounts now due from and hereafter contracted by Weber-Duller Co., together with all interest that may accrue on the same, to cover shipment 2 Bansome mixers complete to the Mexican Petroleum Co., Ebano, Mexico.

“In witness whereof, I or we, have set my or our hand and seal.

“A. B. Allison.

“For and in consideration of value received, we hereby sell, assign and set over unto A. L. Lytle all our right, title and interest in and to the above guarantee.

“Fairbanks, Morse

&

Co.,

“Per C. Knagenhelm, Agt.”

The answer does not deny the execution of the contract, but simply its legal effect. It does, however, deny the assignment. The court found, after admitting oral evidence of the intention of the parties, that by the terms of the contract the defendant promised only to pay for the Bansome mixers, and that the contract price thereof having been paid before suit, no sum was due from defendant, and rendered judgment against plaintiff for costs. A new trial was denied, and from the judgment and the order denying a new trial plaintiff appeals upon a statement of the case.