Bunker v. Osborn

GRAY, C.

—An instrument dated February 16, 1894, purporting to be the promissory note of the Boyle Mining Company (a corporation) for three thousand dollars, besides interest, payable ninety days after date, to the order of G. W. Osborn and Alfred Gonzalez, was by the said payees, on the date of said note, duly indorsed to Wells, Fargo & Co.’s Bank (a corporation). After the said note was due, by its terms, Gonzalez paid the amount thereof to said last-named corporation. This suit was brought by the assignee of Gonzalez to enforce contribution from Osborn of one half of the amount so paid by Gonzalez. Plaintiff had judgment as demanded in his complaint, and the defendant appeals from said judgment and from an order denying him a new trial.

The note of February 16, 1894, was executed and delivered for the purpose of paying and discharging a previous note of date November 21, 1889, which the Wells, Fargo & Co.’s Bank held against Gonzalez and Osborn. Osborn was president and Gonzalez was secretary of the said Boyle Mining Company, and it appears that on their said personal note of November

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21, 1889, they had borrowed three thousand dollars from the said bank, all of which had been paid out to the use and for the benefit of the said Boyle Mining Company. On the receipt of the note of the Boyle Mining Company the bank surrendered the earlier note of Gonzalez and Osborn. Attached to the note of 1894 was a copy of the resolution of the mining company authorizing its execution. This resolution was certified by Osborn as president and Gonzalez as secretary to have been duly passed at a regular meeting of the board of directors of said corporation, and that “said meeting of the board of directors was duly and regularly called and held.” The name of the mining company was signed to the note by Osborn as president and Gonzalez as secretary. A waiver of demand, protest, and notice was indorsed upon the note, and signed by Gonzalez and Osborn.

1. On the foregoing state of facts it is immaterial whether the note of 1894 was legally executed by the said mining company; Gonzalez and Osborn, as indorsers, were liable to the payee, whether it was so executed or not. Indorsers impliedly warrant that the note “is in all respects what it purports to be,” and “that the signatures of all prior parties are binding upon them.” (Civ. Code, secs. 3116, 3117.)