Gelbach v. Dewey

NORTON, J.,

pro

tem.

In this action the plaintiff recovered judgment against defendant, who was one of the comakers with plaintiff of a joint and several promissory note executed and delivered by the makers to the California National Bank of Long Beach. The plaintiff alleged in his complaint and the court so found that on the second day of January, 1926, at Long Beach, California, the plaintiff, defendant Dewey, R. D. Marshall and Susan Gelbach, who is the wife of plaintiff, made and delivered to the California National Bank of Long Beach their joint and several promissory note in writing in the sum of $5,500, payable 120 days after date; that at maturity of said note the said bank demanded payment of the note and, the plaintiff did pay the full amount of the principal of the note and $450 of accrued interest; that at the time of the execution of the note the defendant, the plaintiff and Marshall each agreed to pay at maturity one-third of the principal and interest of said note. In accordance with these findings the court concluded that plaintiff was entitled to recover the sum of $1983.34, being one-third of the amount paid by plaintiff in satisfaction of the said note and judgment was entered' accordingly. The principal ground of appeal is that the finding that the defendant agreed to pay one-third of the principal and interest of the note is not supported by the evidence. A careful examination of the record in our opinion reveals no evidence to warrant this finding and none has been called to our attention by the respondent which would justify it. The fact appears to be, and the plaintiff so testified, that at the time the note was signed “nothing was said about it.” The conclusion is therefore compelling that there was no express agreement between the plaintiff, Dewey and Marshall that each should pay one-third of the note which evidenced their common debt to the bank. The finding is also contrary to the evidence. From the facts shown by plaintiff upon the trial no implied promise arose upon the part of Dewey to pay in excess of one-fourth at most of the joint indebtedness. The note being the joint contract

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of the parties, their liability was presumed equal in the absence of evidence to the contrary.

(Bunker