Rhoades v. Silvius

CONREY, P. J.

This action was brought against Higgins, the maker of the note, and Silvius, guarantor of its payment. Judgment by default was entered against the maker. After trial of the case against the guarantor, judgment was entered against him, from which judgment he now appeals. j

The grounds of appeal, as gleaned from the brief for appellant (there being no clear statement of points and authorities, and there being no index of contents or table of cases, as required by the rules of court), appear to be: First, that the plaintiff is not entitled to maintain the action; second, that appellant tendered payment of the note and that the offered payment was refused; third, that the contract of guaranty was made subsequently to the delivery of the note and without any separate consideration, and is therefore void under the provisions of section 2792 of the Civil Code.

The note was made to the Citizens Trust and Savings Bank of Los Angeles. The assistant cashier of the bank testified that the note was assigned to plaintiff Rhoades

[511]

for collection. The note itself, as produced in evidence by the plaintiff, bears the bank’s indorsement in blank, placed thereon by a competent officer. These facts constitute a transfer sufficient to authorize the plaintiff to maintain the action. (Civ. Code, secs,. 1459, 3115;

Ralph

v.

Anderson,

187 Cal. 45 [200 Pac. 940];

Giselman

v. Starr, 106 Cal. 651, 657, 658 [40 Pac. 8].)

Appellant testified that, on a date after the note fell due, and in response to a letter from the bank demanding payment, he went to the bank with sufficient funds in hand for payment of the note, and told the assistant cashier, Mr. Ralston, that he was ready to pay, and asked for an assignment of the note to himself; that Mr. Ralston responded that arrangements had been made with the Third Street Branch, another branch of the same bank, to handle the matter. Assuming, without deciding, that appellant’s testimony, if uncontradicted, was sufficient to establish a valid tender, we are met by the fact that Mr. Ralston denied that appellant ever offered him any money in payment of or on account of said note, or ever asked for an assignment thereof. On this point, therefore, the case is reduced to the familiar condition wherein there was a conflict in the evidence and the findings must prevail.