Osborn v. Hamilton (1911) · DecisionDepot

Osborn v. Hamilton

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Jul 21, 1911 No. Civ. No. 980.Published

Before: Shaw

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Holding. The court held that the judgment for the plaintiff was proper because the appellant failed to plead or prove her status as a surety, and the evidence supported the findings regarding the execution and delivery of the promissory note.

Issues

Whether the trial court erred in its findings regarding an unpleaded escrow agreement.
Whether a joint maker of a note can assert a surety defense without pleading and proving the payee's knowledge of that status.
Whether the evidence was sufficient to support the finding that the note was delivered to and held by the plaintiff.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“A joint maker of a note, in order to defend on the ground that he is merely a surety for his comaker, must not only plead such fact, but further allege that the payee knew of the fact and consented to deal with him in that capacity.”

“The production of the note at the trial in the hands of plaintiff was prima facie evidence of the facts found”

Synopsis

APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Frank F. Oster, ‘Judge presiding.

The facts are stated in the opinion of the court.

SHAW, J.

Action to recover upon a promissory note. Judgment went for plaintiff, from which, and an order denying her motion for a new trial, defendant Fette appeals.

The note, dated June 14, 1907, payable to plaintiff ninety days after date, signed by each of the defendants as principal, was set out

in haec verba

in the complaint. The appellant Fette filed a separate answer admitting the making and execution of the note as alleged in the complaint, but denied that it was delivered to plaintiff, or that he was the legal holder thereof, or that any sum remained due and unpaid thereon. As a separate defense, appellant alleged that the note was given without consideration, and that her signature thereto was obtained by means of a fraudulent conspiracy entered into between her codefendants and the plaintiff for the purpose of defrauding her and sharing the proceeds derived from such fraudulent conspiracy.

As to all the issues joined by the complaint and answer of appellant, the court, upon ample evidence in support thereof, made findings in favor of plaintiff.

While the fact was not pleaded by way of defense and not made an issue in the case by consent of parties, the court, nevertheless, found that a deed to certain real estate was delivered to a third party in escrow for the purpose of securing payment of the note, which deed, prior to the commencement of the suit, was returned to and accepted by defendants. The terms of the escrow are not disclosed by the record, and hence, from all that appears to the contrary, such security may have been exhausted by a return of the deed pursuant to the terms of the agreement under which it was placed in escrow. Moreover, the finding is immaterial, and has no place in the record, for the reason that no issue to which it is responsive appears therein. Appellant did not base her defense upon the fact that the alleged indebtedness was secured by a mortgage or otherwise. “As the appellant neither asked for the judgment which it is now claimed should have been entered in the court below, nor alleged facts upon which such a judgment could properly have been entered, he cannot here demand a

[636]

reversal of the judgment which responded to the issues actually made and submitted to the trial court.”

Osborn v. Hamilton

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Synopsis

SHAW, J.

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