Lack v. Akins

YORK, J. Appellants’ statement of the questions involved in this appeal is as follows:

“1. The maker and guarantors of a promissory note delivered it to a party, to borrow from the named payee, the money therein recited, to pay a debt to a third party, and the party receiving it, being neither maker, endorser, nor guarantor thereof, but a record stranger thereto, borrowed nothing thereon, but without the knowledge, consent or request of the maker or guarantors, paid said third party from his personal funds, and left the note with the payee for collection from the maker and guarantors, and never advised them that he had paid the debt, or that the loan was not procured from the payee; subsequently, and after [196]maturity of said note, taking an assignment thereof from payee, without any consideration; Query—Can assignee recover in an action upon said note against the maker or guarantors ?

“2. Under above status, can assignee recover in such action, when supplemented by either of the following additional facts: (a) When the assignee was primarily jointly liable for said obligation to said third party; and, or (b) Was a stockholder in the corporation maker; and, or (c) when he had stated to the maker and guarantors, prior to, and/or, at the time of the making and guaranty of it, that he would pay it and hold them harmless thereon, which was the procuring cause of them so executing said note.”

It will be noted that the “and/or” is in the quotation and is not this court’s language.

We think that the questions involved, as stated by appellants, are answered completely by the fact that this is an action for money due on a promissory note, brought by plaintiff, assignee of the payee, against the guarantors and endorsers of the note. The undisputed evidence shows that the defendants and the Paramount Motors Corporation of the Pacific, a corporation, maker of the note, were anxious to raise the amount of money named in the note, and that plaintiff paid the money by drawing his check on the bank, named payee of the note, and that he (the plaintiff) was the real owner of the note at all times, although it may have been held as security by said association, either as security for an obligation of the plaintiff, or as trustee for the plaintiff, or possibly both, but this would not, as we view the matter, make any change in the situation. It seems to be a very simple transaction. The defendants and the Paramount Motors Corporation of the Pacific were desirous of obtaining the money for a definite purpose, the money was obtained by the plaintiff for them, and they actually used it for such purpose, and two of the defendants are now appealing from a judgment for the balance unpaid of that same money. Therefore, as we view the situation, it would make no difference as to the judgment herein whether the plaintiff stated in detail the exact conditions under which he secured the money (even if in writing—which it was not), so long as the money was actually secured- and used in accordance with the desires of all of the defendants.