Security-First National Bank v. Schuh

CRAIG, J.

In an action for the principal sum of a promissory note, together with interest and attorneys’ fees, findings of fact, conclusions of law and judgment were made and entered in favor of the plaintiff. The defendant having admitted execution of the note and interposed an affirmative defense thereto, motion for a new trial was made upon the ground that findings adverse to said defense were not supported by the evidence, which motion was denied. He appealed from the judgment and from the order deny

[144]

ing a new trial. There being no right of appeal from such an order it must to that extent be dismissed.

(Kircher

v.

Hunter,

101 Cal. App. 548 [281 Pac. 1047].)

There is no conflict as to the following transaction: Prior to August 7, 1930, the TJrmi Oil Company was indebted to the respondent bank in the sum of $5,000, which note had been executed by defendant John E. Schuh as president and Edgar D. Brown as secretary, respectively, of said company, and bore the indorsement: “For value received, I hereby . . . guarantee payment of the same, and of all expenses of collection thereof, . . . and also all expenses ... in enforcing this guaranty ... ”, signed by defendant Schuh and B. N. Belyea. After its maturity and upon the date mentioned a 'promissory note for the same amount and containing a pledge of certain specified corporate stocks, by which it was agreed that “the undersigned (jointly and severally) promise[s] to pay”, and that upon nonperformance of said promise the plaintiff and respondent was “given power and authority to collect, or to sell, assign and deliver the whole or any part of the pledged property, ... at either public or private sale, and at the best price offered”, and to satisfy said obligation, was executed by the appellant herein. Said latter note was also indorsed', “For value received, I hereby ... do guarantee payment of the same . . . and of all expenses of collection thereof, . . . and also all expenses, including attorneys’ fees, incurred in enforcing this guaranty”, by the maker. Contemporaneously with the execution' of the first note there was executed by J. N. McFate, I. B. Rankin, Edgar D. Brown and O. M. Paddleford a “guarantee” to respondent bank of any and all indebtedness “for the present forbearance of said bank to sue upon any of the past due debt of the debtor” company. A vice-president of the bank testified, and there was introduced his statement in writing under date of the original loan: “I have approved today a $5000 loan for 90 days to the above company, with the endorsements of John E. Schuh and B. W. Belyea. The company itself is not entitled to secure credit, but the endorsements made it good.” The second note was given in lieu of the first note and guarantee, was delivered to the bank with said collateral securities and became the subject