Wilshirb Mortgage Corp. v. O. A. Graybeal Co.

WHITE, J. This is an appeal from a judgment of non-suit rendered upon motion of the defendant at the conclusion of plaintiff’s case. The instant action was instituted to recover upon certain undertakings required to be filed and which were filed by the defendant casualty company upon the issuance of a temporary restraining order and a subsequent injunction pendente lite in an action begun in the superior [3]court of Los Angeles county by O. A. Graybeal Company, a corporation, against Wilshire Mortgage Corporation et al., and in which action the complaint was characterized as one “for injunction, accounting and declaratory relief”. The original complaint in the case now before us named 0. A. Graybeal Company and the Fidelity & Casualty Company of New York as defendants. Following the interposition of a demurrer thereto, an amended complaint was filed naming only the casualty company which latter corporation appears herein as respondent. The cause was tried before the court sitting without a jury upon the amended complaint and a further amendment thereto filed with leave of court on the day of the trial, coupled with defendant’s answer, which, in addition to certain denials, interposed six affirmative defenses.

The facts pertinent and necessary to a disposition of the questions raised on this appeal may be thus epitomized: On or about November 16, 1928, plaintiff herein loaned to Charles A. Gee and Elizabeth Gee, his wife, the sum of $21,000 for which the borrowers executed and delivered six promissory notes, each bearing date October 16, 1928, and each being for the principal sum of $3,500, due three years after date with interest. At the same time and for the purpose of securing the payment of each of said notes, the borrowers executed and delivered six deeds of trust, each securing the payment of one of said notes, and by which deeds of trust six separate parcels of property were conveyed to Title Guarantee & Trust Company with power of sale by the trustee in the event of default. Said deeds of trust also secured the payment of costs and expenses incurred by the trustee in any proceedings taken thereunder. Subsequently plaintiff and appellant herein for a valuable consideration transferred the notes and trust deeds to six separate individuals. By the amended complaint it was alleged that at the time of said conveyances and as a part of the agreement therefor, the plaintiff guaranteed to each of said transferees, his successors and assigns, the payment in full of the principal and interest of each of said notes, and all costs and expenses incurred in connection therewith. Subsequently the makers of the aforesaid notes defaulted, and each of the holders of said notes elected to declare each of said instruments wholly due and payable, and each holder filed for record an election to have the trustee sell the respective properties conveyed by the deeds of trust. In conformity with the requirements of law, the trustee, Title