Magill v. Davenport

TUTTLE, J.,

pro tem.

This is an appeal from two judgments against defendant and appellant Guardian Investment Corporation of California. The actions were brought to foreclose two mortgages, and to recover upon a breach of implied warranty under section 3146 of the Civil Code. The court rendered judgment in one case for damages in the

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sum of $1286.13, and for $1213.78 in the other. Both appeals are upon the judgment-roll in each case, and are here consolidated. The findings in each case are identical.

The findings are extensive, talcing up some twenty-five pages of the transcript. Briefly summarized, these findings disclose the following salient facts: On February 11, 1926, defendants Dudley M. and Eva M. Davenport, executed and delivered two promissory notes to defendant Harry L. Bone, said notes being each in the sum of $4,500, and secured by mortgages. During the year 1926 defendant Investment Company was engaged in the investment and brokerage business with defendants Harrison and Menefee as vice-president and general manager and secretary, respectively. During the month of February, 1926, defendant Bone transferred said notes and mortgages to defendants Harrison and Menefee. The notes were indorsed upon the transfer as follows:

“For value received, we do hereby transfer and assign to -, the within note, together with all rights accrued or to accrue under the mortgage or deed of trust, securing the same, so far as the same relates to this note and without recourse on us.

“Harry L. Bone.”

On June 15, 1926, defendant Investment Company, acting as agent of Harrison. and Menefee, delivered these notes and mortgages to plaintiff, who paid for each note the sum of $5,292.58. Prior to such delivery, the date “4^22-1926” was placed above said indorsement, and the name of plaintiff was written in the blank space therein by defendant Menefee. The fact that defendant Investment Company was acting as agent for Harrison and Menefee was not disclosed to plaintiff, nor were the names of such owners disclosed. The original complaint in each of these cases was an ordinary one for the foreclosure of a mortgage, and appellant was not a party thereto. After eighteen months of reflection, and after numerous amendments had been made, the complaint emerged in its present form, bringing in appellant, and alleging the facts we have set forth, and many others.