Farr v. Wolcott

SLOSS, J.

The complaint alleges that on May 16, 1910, Los Angeles City Realty Company (a corporation) made, executed, and delivered its promissory note, whereby it promised to pay to the order of J. H. Bullard, trustee, on or before three years after date, the sum of fifteen thousand dollars, and interest payable monthly, with an option to the holder to declare the principal due on default in the payment of interest; that before the delivery of said note the defendants, by writing thereon, guaranteed the payment of the note in words as follows:

“For value received, we, jointly and severally guarantee payments of this note, and any renewal thereof and hereby waive protest, demand and notice of nonpayment.

* ‘ (Signed) N. A. Wolcott.

“E. M. K Wolcott.'

“F. A. King.”

The complaint alleges that on July 1, 1912, and before maturity, J. N. Bullard, trustee, sold, assigned, and transferred the note to the United States National Bank; that in due course of business said bank indorsed said note and delivered same to plaintiff, who is now the lawful holder thereof. It is alleged that the maker of the note has defaulted in the payment of interest since January 16, 1911; that no part of the principal has been paid, except $151.19; and that the balance of the principal, together with interest from February 16, 1911, is due. Prior to the filing of the complaint the plaintiff exercised his option to declare the whole sum due, and demanded payment from the maker, which was refused.

N. A. and E. M. K. Wolcott answered jointly, and defendant King filed a separate answer. The answers deny, among other things, the making of the note, its transfer to •the United States National Bank by Bullard, or by said bank to the plaintiff. They also deny the allegation of nonpayment of the note. The answers seek, in addition, to set up the invalidity of the note itself, and the rescission by the

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defendants of their guaranty because of fraudulent misrepresentations alleged to have been made to them. The court found, that the note was made as alleged, and found in favor of the plaintiff on the allegations of nonpayment and of indorsement and delivery of the note. It also found that no fraudulent representations had been made by the payee to the defendants. There is a finding “that the allegations of the defendants that said note was not duly executed are not true; . . . and that the defendants have no legal standing to question the execution thereof.” Judgment was entered in favor of the plaintiff as prayed, and defendants appeal from such judgment and from an order denying their motion for a new trial.