Bailes v. Keck

This appeal is, with respect to the main legal questions presented, a counterpart of Bailes v. Keck et al., ante, p. 697 [51 A.L.R. 930, 254 P. 573], except that in the instant case defendants Keck and Millican are shown upon the face of the promissory note sued on to be guarantors rather than makers thereof. In this respect only the case differs from Bailes v.Keck et al., supra. The transaction out of which the note sprang, so far as a gleam of light is shed upon the former interrelated business connections of the parties to this and the companion action, appear not from the pleadings, but are referred to in affidavits, pro and contra, used upon a hearing of the motion to vacate the order dismissing the action after demurrer sustained upon refusal on the part of plaintiff to amend his complaint within the time allowed by the court.

The note was joint and several and was dated December 11, 1923, and was for the sum of $5,000, payable upon demand to the California National Bank of Long Beach. F.E. Brittain and Mary J. Brittain were the makers and J.L. Keck and E.E. Millican guarantors. Thereafter, it is alleged, said bank indorsed said note without recourse to one of its makers, to wit, F.E. Brittain, for a valuable consideration, and delivered said note into his possession. He, in turn, according to the allegations of the complaint, for a valuable consideration, indorsed and delivered said note to plaintiff, who became and is the owner and holder thereof. Interest has been paid thereon to the amount of $1,431.96 by someone not named. Judgment for the principal, interest, and counsel fees against guarantor Keck is demanded.

The motion to vacate the order or judgment dismissing the action after demurrer sustained, the proffered amended pleading and the affidavits offered in support of and in opposition to appellant's motion are in substance and effect identical with the proceedings reviewed in Bailes v. Keck et al., supra. It is, therefore, unnecessary to restate the grounds upon which the judgment and order in that case were affirmed, and it is sufficient to say that the rule therein declared is applicable to and must rule our decision in the instant case.

Judgment and orders appealed from are affirmed.

Richards, J., Preston, J., Curtis, J., Langdon, J., Shenk, J., and Waste, C.J., concurred.