Bagley v. Cohen

Citations

• 121 Cal. 604
• 53 P. 1117
• 1898 Cal. LEXIS 961

Syllabus

<p>Guaranty Appended to Contract—Original Undertaking.—A guaranty appended to a contract before its delivery, to the effect that the contract shall be performed according to its conditions, is part of the same transaction with the contract, and the two instruments make but a single contract on the part of the guarantors, and is an original undertaking by them.</p> <p>Id.—Commensurate Liability.—The liability of the guarantor upon such original undertaking is commensurate with that of the principal contractor, and is absolute, when he becomes absolutely liable for breach of the principal contract.</p> <p>Id.—Guaranty of Note Payable out of Profits—Sale of Business.—Under a note payable out of the profits of a business, the payment of which is originally guaranteed in accordance with its conditions, the liability both of the maker and of the guarantors becomes fixed and absolute, when the maker voluntarily puts it out of his power to make any profit out of the business, or to fulfill the contract according to its terms, by a sale and conveyance of the business.</p> <p>Id.—Insertion of Name in Guaranty—Execution.—The insertion of one only of the names signed to a guaranty, in the body of the guaranty, does not make the person so named the sole guarantor, where it appears that another person also executed it, not as a witness, but as one who made and subscribed the guaranty.</p> <p>Changing Place of Trial.—An application for a change of the place of trial is properly refused, where the defendants did not appear, or answer or demur at the time when the motion was made.</p> <p>Setting Aside Default—Rule Requiring Copy of Answer—Demurrer.— A rule of court requiring the copy of an answer proposed to be filed, to he served with the notice of a motion to set aside a default is proper; and a demurrer is not an “answer” within the meaning of such rule.</p>