Bourn v. Dowdell

Citations

• 5 Cal. Unrep. 820
• 50 P. 695
• 1897 Cal. LEXIS 954

Syllabus

<p>Pleading.—An Admission in Plaintiff’s Answer that pledged property was sold after a certain date cures a cross-complaint defective in not so stating.</p> <p>Guaranty.—A Contract Provided “That B. Should have the Privilege at any time hereafter of selling the wine belonging to or hypothecated by D., at a price not less than thirteen cents per gallon.” A subsequent clause provided that “the wine may be sold by B. at any price after March 1, 1893, provided B. guarantees a profit to D. of $4,000.” Held, that B. might sell before said date at not less than thirteen cents per gallon, and after said date at any price, upon guaranty of $4,000 profit to D.</p> <p>Contracts—Second Superseding First.—Defendants, Being Indebted to plaintiff, executed] their note to him for the amount, and pledged 520,000 gallons of wine to secure payment. A contract between the parties, made two days later, contained provisions inconsistent with the prior agreement. It provided for a division of profits of defendants’ business between the parties, on a basis different from that contained in the first agreement. The wine was by it again delivered to plaintiff; and it fixed the conditions on which the wine might be sold by plaintiff, and the time of sale-, and the price to be received, and entered into details of past, present and future dealings, and the manner in which they were to be carried out. Held, that the second agreement superseded the first.</p> <p>Guaranty.—Where Wine was Pledged With Power in the Pledgee to sell upon guaranty to the pledgors of a profit for them of $4,000, the guaranty was supported by a sufficient consideration.</p> <p>Guaranty.—The Guaranty was Absolute, and not upon condition that the pledgee should be fully paid.</p> <p>Guaranty.—Breach of the Guaranty was not a Mere Offset pro tanto to a note secured by the pledge, but was a complete defense.</p>