Palmer v. Friedman

STURTEVANT, J. The plaintiffs commenced this action to recover $28,787.22 claimed to be the amount of the [263]deficiency after a sale had under a deed of trust. Judgment ivent in favor of the plaintiffs and against all of the defendants. Aaron Friedman, one of the defendants, appealed. It was the contention of the plaintiffs, as shown in their complaint and the evidence offered in support thereof, that on the 26th day of March, 1930, the plaintiffs agreed to lend and the defendants agreed to borrow $65,000 to be evidenced by a promissory note to be executed by Joseph Friedman and Ernestine Friedman payable to these plaintiffs. It was further agreed that said note would be indorsed by the defendant Aaron Friedman and its payment would be secured by a trust deed executed by the makers of the note as trustors, to California Pacific Title & Trust Company as trustee, in favor of these plaintiffs as the beneficiaries. Thereafter such a note was executed, the deed of trust Avas executed, and the money was loaned. Each and all of the foregoing facts appeared from the face of the written instruments and the direct evidence of two or more witnesses. However, it was contended by the defendants that four days after the above-mentioned note Avas executed, Mr. Silas Palmer, acting for all of the plaintiffs, directed the trustee to obtain a different note in the place of the above-mentioned note, that it did so, that the second note is the one sued on, and that it is the sole embodiment of the contract between the parties. It is further contended that the first note was indorsed by Aaron Friedman Avithout recourse and that therefore no judgment should be entered against the indorser. It is further contended that no consideration Aims received by Aaron Friedman and that the second note was executed after the money was loaned and paid over to the trustors and therefore the purported contract of guarantee was not enforceable against Aaron Friedman. If the facts were as contended by the defendant his conclusions would' be sound, but the facts were found in favor of the plaintiff and against the defendant on each and all of said issues. The latter contends that the findings are not supported by the evidence because the evidence was inherently improbable. We find no merit in that claim. Bearing in mind that the trustors were the OAvners of the real estate, the indorsement of Aaron Friedman was in the nature of a guarantee, but an indorsement without recourse would not be. (Civ. Code, see. 3119; Leekley v. Short, 216 Iowa, 376 [264]