Ogden v. Ford

VICTOR E. SHAW, J.,

pro tem.

In this action plaintiff obtained judgment against Benjamin F. Ford and Frank J. Becker as guarantors of a promissory note made and delivered to him by Russell T. and George M. Briggs.

From this judgment and an order of court' denying their motion for a new trial the defendants, Becker and Ford, have appealed.

As a defense to recovery on the note, defendants alleged that the consideration thereof was an agreement on the part of plaintiff that he would dismiss, or cause to be dismissed, a certain criminal proceeding then pending in the superior court against Russell T. and George M. Briggs, and against

[244]

whom he had sworn to a complaint charging them with embezzlement. Such agreement, if made as alleged, would, of course, render the note void.

(Keating

v.

Morrissey,

6 Cal. App. 169, [91 Pac. 677];

Thom

v.

Stewart,

162 Cal. 415, [122 Pac. 1069].) As to this issue, however, the court found ad-' versely to defendants, and further found that the note with the indorsement of defendants guaranteeing payment thereof was duly made and delivered to plaintiff in satisfaction of a judgment obtained by him against the said Russell T. and George M. Briggs, and in the absence of any agreement, promise, or understanding on his part, express or implied, to dismiss the criminal action then pending against the said Briggs, or otherwise to refrain from the prosecution -thereof.

Appellants’ chief claim is that this finding is not supported by the evidence. The record discloses no ground for such contention. As appears therefrom, the note, payment of which was guaranteed by appellants, was given in satisfaction of a judgment obtained by plaintiff against the Briggses for money of his which they had wrongfully appropriated. Assuming that both they and appellants believed, as the evidence tended to prove, that defendants in the criminal action would fare better if they reimbursed plaintiff for the loss > incurred by reason of their offense, their act in so doing was not due to any agreement or promise on his part not to prosecute them. Indeed, the control of the prosecution was in the hands of the district attorney, who says that upon learning that Briggs had satisfied the judgment, he dismissed the prosecution, for the reason that in such cases it was extremely difficult to secure a conviction where the civil liability had been settled. True, he further stated that plaintiff said he did not wish to prosecute them and gave expression to language indicating his desire to have the action dismissed, as to which, however, whether to the district attorney or to others, both plaintiff and his attorney, Freeman, denied the making thereof. Other than this conflicting testimony, no evidence was adduced on behalf of defendants tending to show that plaintiff ever at any time agreed to cause the criminal action against Briggs to be dismissed in consideration of the giving of the note guaranteed by them. While it is, no doubt, true that defendants and Briggs hoped that by giving the hote in satisfaction of the civil liability the latter, as they did, would escape prosecution, none of them testified