Bank of Lemoore v. Gulart

BELCHER, C. This is an action to recover the amount due on a promissory note for $600 executed by defendants Gulart and Rose to the plaintiff on November 22, 1892, payable six months after date, and bearing interest at the rate of one per cent per month. It is alleged in the complaint that on July 24, 1893, defendant Biddle signed and delivered to defendant Rose a written agreement whereby, for a good consideration expressed therein, he promised and agreed to pay to the plaintiff the said promissory note sued upon, out of the proceeds of a band of sheep that day mortgaged to him by defendant Gulart—the payment to be made in about thirty days, or as soon as the sheep should be sold; that on or about the same day plaintiff agreed to and did accept the promise made by Biddle to pay the said note, and that Rose performed all the conditions of the said agreement to be by him performed; and that the said sheep were delivered to Biddle, and had long since been sold by him, but he had not paid any part of the principal of the said note, or any of the interest due thereon, except the sum of $40, which was paid by him about February 3, 1894. Rose answered, admitting all the averments of the complaint, and alleging that shortly after the execution and delivery of the said agreement the plaintiff, for a good and sufficient consideration, promised to and did release and discharge him from all liability for or on account of the said note, or any part thereof. Biddle [167]answered, denying his liability upon the said agreement, because Rose and he had, subsequent to the execution thereof, entered into other agreements which took the place of the one sued upon, and which had been fully executed by him before the commencement of this action, and that, if liable to plaintiff for any sum, it was for $121.35 only, that being the amount of the proceeds of the sale of the sheep menti&ned in the said agreement. The cause was tried by the court without a jury, and the court found, among other things, that all the allegations of the complaint were true, and all the allegations and dénials of the said answers were untrue. Judgment was accordingly entered in favor of the plaintiff and against the defendants Rose and Biddle for the amount claimed in the complaint. From that judgment Biddle alone appeals, and the case is brought here on the judgment-roll and a bill of exceptions.

Appellant contends that the findings were not justified by the evidence, but we think they must be sustained. By the agreement of July 24, 1893, appellant promised unconditionally to pay the note in suit to the plaintiff out of the proceeds of a band of sheep, when they were sold; and on or about the same day he called up, by telephone, D. 0. Carr, the cashier and secretary of the plaintiff bank, and told him that he had made an agreement by which he agreed to pay the note of Rose and Gulart (the note in suit), and that he would pay the interest up right away, and would like thirty days on the note. In answer, Carr told him that, in consideration of his saying he intended to pay the note, they would not press the matter for thirty days. And Carr testified: “What caused me to extend the time to pay the note was the fact that Joe D. Biddle agreed to pay it.” Appellant sold the said sheep in September, 1893, for $1,875, and on December 16, 1893, he wrote to the Bank of Lemoore, saying:' “Say, Friend Carr.....Can’t you let the note run, say, a little longer? Will send you the interest, and pay up at" once. The note is strictly Al. Will guarantee full payment. ’ ’ And about February 3, 1894, he paid $40 on account of the interest due on the note.