Magee v. Kast

By the Court, Crockett, J.:

1. The demurrer to the complaint was properly overruled. (Abadie v. Carrillo, 32 Cal. 172.)

2. The condition annexed to the signature of the plaintiffs to the composition agreement was a part of the contract on their part, and, on its delivery, became obligatory as such.

3. On the question, first, whether it was the mutual understanding of the parties, that the composition was to be confined to the California creditors, or was to include also the Philadelphia creditors, and, second, whether the plaintiffs subsequently waived the performance of the conditions annexed to their signatures, there was a substantial conflict in the evidence, and we cannot disturb the decision and judgment on the ground that in this respect they were not justified by the evidence.

4. The conditions annexed to the signature of the plaintiffs, being a part of the contract, were obligatory on the defendant, and the Court has no power to excuse him from their performance.

5. If it be assumed that the plaintiffs agreed with the defendant that on being indemnified against their suretyship on the bond they would accept thirty cents on the dollar in satisfaction of their demand, provided the other creditors would do so; they, nevertheless, had the right, on signing the composition agreement, to make it a condition that all the other creditors should accede to the same terms within a specified time.

We see no error in the record.

Judgment and order affirmed. Remittitur forthwith.

Mr. Justice Rhodes did not express an opinion.