Lady v. Thomas

THOMPSON, J. The plaintiff has appealed from that portion of a judgment of foreclosure which denied him relief against an undisclosed principal in the execution of the promissory note which was secured by a trust deed. An effort is also made to appeal from an order denying plaintiff’s motion for a new trial.

[689]The statute does not authorize an appeal from an order denying a motion for new trial. The attempt to appeal from that order was therefore ineffectual. (Strauch v. Bieloh, 16 Cal. App. (2d) 278 [60 Pac. (2d) 582].)

The complaint alleges, and the court found, that the defendants Mr. and Mrs. James H. Thomas, for a valuable consideration, executed a promissory note September 14, 1932, for the sum of $3,200 payable to Francis E. Dalin, one year from the date thereof at 7 per cent interest per annum payable quarterly; that the note was secured by a trust deed on certain described lots in Los Angeles, also executed by Mr. and Mrs. Thomas; that, as a part of the same transaction, the note and trust deed were immediately transferred to the plaintiff, William E. Lady; that Philip L. Wilson, a codefendant, was, in fact, the undisclosed principal in the execution of the promissory note, but that his name did not appear on the note or trust deed, and no reference to such undisclosed principal was made in connection with the transaction. The court thereupon rendered judgment against Mr. and Mrs. Thomas for the aggregate sum of the principal and interest due on the promissory note, together with expenses incurred for taxes, costs, and counsel fees. The court directed foreclosure of the trust deed and sale of the property pursuant to the terms thereof to satisfy the judgment. The court, however, decreed that plaintiff take nothing against the defendant Wilson, on the theory that he is exempt from liability under section 3099 of the Civil Code, because his name does not appear on the note or trust deed, and no reference to him is made in those instruments. From the last-mentioned portion of the judgment this appeal was perfected.

This is a suit to recover the unpaid portion of a negotiable instrument and to foreclose the trust deed executed to secure the note against not only the makers of the note but also against an undisclosed principal whose signature does not appear on the instruments, and to whom no reference is made therein. The trial court properly held that the undisclosed principal was not liable under such circumstances. Under the Uniform Negotiable Instruments Act adopted by California and other states of the Union, it is uniformly held that a suit may not be maintained on a promissory note against an undisclosed principal whose signature does not appear thereon, unless the note is signed by use of his trade