Jones v. Post

Citations

• 6 Cal. 102

Syllabus

<p>When A has made a payment in advance on a contract to purchase stock of 33, which B refuses or fails to deliver, and A thereupon notifies B that he claims the right to rescind the contract and claims repayment of the money paid, the notice does not affect or impair the right of A to maintain an' action for damages on the contract.</p> <p>A guaranty not under seal nor expressing consideration made cotemporaneously with the contract guarantied, is a part of that contract,, and the expression of the consideration in the contract, takes the guaranty out of the Statute of Brands.</p> <p>In an action on a guaranty, though it is error in terms to charge the jury, if they find for the plaintiff, to assess as damages the amount of the penalty fixed in the guaranty j yet if the plaintiff's damages, if any, must exceed the penalty, the direction must be regarded as limiting the verdict, and the defendant is not injured by the instruction.</p>