County Bank of San Luis Obispo County v. Greenberg

Haynes, C. This action is upon a promissory note made by Meyer Greenberg, L. J. Greenberg, and B. Schwartz, dated March 5, 1894, at one year, to order of the plaintiff, for the sum of five thousand dollars, with interest at ten per cent until paid, and at the end thereof, above the signature of the makers it was added: “This note is given to secure overdraft of Greenberg Bros.” The complaint is in the usual form, sets out a [468]copy of the note, and alleges that no part of it has been paid.

A general demurrer to the complaint was overruled, the defendants answered, and upon trial before a jury the plaintiff had verdict, and judgment was entered thereon against the defendant Schwartz, the - other defendants having been discharged in insolvency pending the suit.

This appeal is from the judgment upon the judgment-roll and a bill of exceptions.

The demurrer to the complaint should have been sustained. The instrument sued upon is not an absolute and unconditional promise to pay a certain sum of money at the time specified, but is a collateral agreement to pay the overdraft of Greenberg Brothers, on March 5, 1895, not exceeding the sum of five thousand dollars, and accrued interest. The action is properly brought upon the instrument; but as the liability of the defendants depended upon a fact not appearing upon its face, namely the existence of an overdraft at the time the action is brought, such fact must be alleged.

In Tooker v. Arnoux, 76 N. Y. 397, the action was upon the following order drawn upon the defendant in favor of the plaintiff:

“ Please pay William T. Tooker the sum of $556 out of the money to be realized from the sale of the houses on the north side of 46th street, city of New York, and known as Nos. 305, 307, and 309 East 46th street.

James Watson.”

This order was accepted by defendant, and before suit one hundred dollars was paid thereon. There was no' allegation that the houses, or any of them, had been sold. Defendant’s counsel, at the beginning of the trial, moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The motion was denied. Plaintiff offered evidence of the sale of the houses, to which defendant objected on the ground that it was not averred in the complaint. Verdict for plaintiff. Upon appeal the