White v. Standard Lumber & Wrecking Co.

The defendants appeal from an order denying their motion for a new trial and from the judgment. The complaint is based upon two promissory notes dated May 17, 1911, due respectively five and six months after date, and each being for the principal sum of $749.41, with interest. These notes were executed by Standard Lumber Wrecking Company and made payable to the Westport Lumber Company or order, and through subsequent assignments became the property of the plaintiff. The defendants by their answer alleged that the first note was fully paid, and denied "that no part of the principal or interest on the second note has been paid, except the interest credited thereon as shown by the complaint," and denied that the said principal sum and interest, as stated in the complaint, is wholly due and unpaid. The plaintiff was the only witness at the trial of the case. On cross-examination he said: "I received the following order which was given as in payment of these notes: 'Los Angeles, Cal., Oct. 18th, 1912. Mr. C. W. Rogers, City. Dear Sir: Please pay to the order of Mr. Deitrich, of the firm of Haas Dunnigan, the sum of one thousand dollars ($1000.00) and charge to my account. Yours truly, W. W. Wilcox,' which was accepted as follows: 'Accepted to be paid December 24th, 1913. C. W. Rogers,' but the order was not paid." The complaint in this action was filed October 25, 1913.

On these facts the appellants claim two defenses: First, that the action was prematurely brought; second, that the amount of the foregoing accepted order should have been credited by the court on account of said notes. The first of these defenses is not sustained. The notes were due by their terms, and at the time of the commencement of this action the plaintiff was entitled to sue for any balance unpaid thereon. The other matter of defense above noted was established by the evidence. The plaintiff having received the order as in payment of the notes, on his own responsibility submitted to an acceptance for a date more than one year later than the date of the order. He admits that at some subsequent time he recovered judgment against Rogers on that order. Whether that judgment was paid is not shown and is not material to this case. It may perhaps be reasonably inferred *Page 648 from the testimony that in giving the order in question Wilcox was acting as president of the defendant corporation, although that fact is not definitely set forth.

On behalf of appellants Wilcox, Moran, and Lynn it is further insisted that the complaint does not state a cause of action against them. Immediately following the copy of the note set forth in each count of the complaint, we have the words, "Indorsements as follows," followed by the names of these three defendants. Then follows a form of guaranty of payment and waiver of demand, etc., with the same three names repeated; but there is not in the complaint nor in any amendment thereof any allegation of the execution of such contract of guaranty or waiver. Such allegation was necessary if the plaintiff desired to rely upon waiver as an excuse for failure to make presentation and give notice of dishonor. "Recitals in a contract incorporated in a complaint will not supply the want of essential averments in the pleading." (Hayt v. Bentel,164 Cal. 681, 686, [130 P. 432].) Here, however, it cannot be claimed that the form of indorsement of guaranty agreement constituted any part of the notes in question, of which defendant corporation was the maker.