Rogers v. Kimball

Citations

• 121 Cal. 247
• 53 P. 648
• 1898 Cal. LEXIS 885

Syllabus

<p>Contract fob Indemnity—Failure of Consideration.—In an action upon a contract oí the defendants to indemnify the plaintiffs, husband and wife, against liability upon a promissory note executed jointly by plaintiffs and defendants, where the court found upon the issues joined by the pleadings that the husband was the principal debtor, and that his wife and the defendants were his sureties, and that the sole consideration for the contract to indemnify the plaintiffs was a promise of the husband to convey to the defendants an interest in a Mexican concession for a railroad, hut the conveyance was never made, and that there was a failure of consideration for the contract of indemnity, there being sufficient evidence to support the findings, judgment for the defendants was rightly rendered, and must be affirmed upon appeal.</p> <p>Id.—Consideration for Wife’s Signature—Conflicting Evidence—Variance.—The court was not hound to find that the consideration for the wife’s signature to the note was the promise of the defendants that an agreement of indemnity would be executed by the defendants, merely because of her testimony to that effect, where there is conflicting evidence in the record, and her evidence is at variance with the allegations of her complaint and with the recitals of the instrument containing the agreement for indemnity.</p> <p>Id.—Grounds of Recovery not Pleaded—Estopped—Findings.—Plaintiffs were bound to establish their case as alleged, and cannot rely upon an estoppel, or any other ground of recovery not pleaded; and where the evidence did not warrant a recovery under the facts averred, and no request was made for leave to amend the pleadings to conform to facts proved so as to authorize a recovery upon another theory, the findings against them will not be disturbed because upon a different state of the pleadings plaintiffs might have been entitled to recover.</p> <p>Id.—Release—Consideration—Construction of Code.—The contract of the defendants, as joi