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would make said payment of said sum of act or words of the party acquiring the right $5,000 to said Chambers which was agreed to accept or reject such offer, the transaction and understood should be paid on the 17th between the parties, ipso facto, ceases to be day of September, 1903, and that said plain- an option, but becomes a sale or contract of tiff would sell to the said Great Western sale, according to the circumstances of the Gold Company the said mining claims herein- acceptance. before mentioned for the said sum of $7,000." Plaintiff testified that on the 21st of April, The answer avers that the promissory note 1903, Chambers paid him the sum of $1,000. set out in the complaint was given for the There is no provision in the agreement in expurpose and the intent that the same might press language which indicates that the docubecome a payment upon said mining proper- ment was intended as an option; but appelty, and that no demand for its payment was lant undertakes to construe certain language made until more than six months after its contained therein as a manifestation that the maturity. “For a third and separate an- parties intended and understood the instruswer,” the answer reiterates that the note in ment to be a mere offer to sell. But assuming dispute was made and given and accepted that the original writing could be construed as part payment of the agreed purchase as a mere option, it is clear that the payprice of said mining claims, and avers that ment by Chambers, on the 21st day of April, “up to and including the 10th day of Au- 1903, of the sum of $1,000 to the plaintiff, gust, 1903, said defendant, Chambers, had operated as an acceptance of said option, performed on his part all the terms, time

and that, whatever may have been the pregiven and conditions of" the four several vious intention of the parties as to the nature agreements between him and the plaintiff. of their transaction, it took on, from the It is also alleged that the plaintiff put it out time of such payment, the character of an of his power to carry out his part of the agreement or contract of sale, and its terms agreement with Chambers by agreeing, with- capable of being specificaly enforced. And out the knowledge or consent of the defend- assuming, further, that the plaintiff intended ants, to sell said property to the corporation the original writing to be nothing more than mentioned, and that therefore the considera- an offer to sell, it is manifest that, after the tion for said promissory note "wholly and receipt by him of said sum of $1,000, and entirely failed." It may here be stated that from the language of the fourth writing, exethe property which is mentioned in the agree- cuted by all the parties to this action, he, too, ment between the plaintiff and the Great treated said payment of $1,000 as an act of Western Gold Company is designated therein acceptance of the option by Chambers. The as the "Vandevere Mine," but the answer “fourth writing" referred to was made suballeges that it is the identical property men- sequently to the payment of the $1,000 to the tioned in the agreement between plaintiff plaintiff, and reads in part as follows: and Chambers.

“Whereas, there is now due and owing claims It is contended by the appellant that the in the sum of $2,500.00, now, for and in conagreement between the parties was intended sideration of the sum of $1.00 to me in hand and understood by them to be an option paid by said James Chambers, I hereby agree tendered to the defendant Chambers to pur- to accept a promissory note of even date herechase the property described in the instru- with, signed by said Jas. J. Chambers and ment; while, on the other hand, the respond- F. P. Primm, in lieu of the sum of $2,500.00, ent maintains that it constituted a contract said note being payable sixty days from and by the provisions of which the plaintiff after date hereof, with interest at the rate of agreed to sell, and the defendant Chambers 8 per cent. per annum until paid." In view agreed to purchase, said property. "The dis- of the fact of the payment of the $1,000, tinction between a contract to purchase or there can be but one meaning to the language sell real estate and an option to purchase is quoted, “Whereas, there is now due and owing that the contract to purchase or sell creates a payment on said mining claims," and that a mutual obligation on the one party to is that the mines had been sold, and that sell and on the other to purchase, while an there was then due from the purchaser the option merely gives the right to purchase certain sum of money mentioned in said writ. within a limited time without imposing any ing. To hold that, after the payment of the obligation to purchase.” 29 Am. & Eng. $1,000 by Chambers to the plaintiff, the transEncy. of Law (2d Ed.) p. 606. In other action still remained an option (we are aswords, an option is a contract by which the suming but not conceding that the original owner of property invests another with the writing was only an option), would be to deexclusive right to purchase said property at clare that the said sum so paid was the cona stipulated sum within a limited or reason- sideration for the right acquired by Chambers able time in the future. Or, stated in an- under the option; that is, the right to accept other form, it is a right "acquired by con- or reject an offer to sell property itself valued tract to accept or reject a present offer, with- at only $7,500. Such a construction of the in a limited or reasonable time in the fu- agreement, under the circumstances, would be ture.” 21 Am. & Eng. Ency. of Law, p. 924. unreasonable and absurd. When the offer thus made is, within the It is further contended that, under a proper time stipulated, accepted by any sufficient construction of the last or "fourth writing," the note sued on was "accepted as a payment trinsic circumstances, as disclosed by the recon the contract or option, and not as an ex- ord, which surrounded and accompanied its tension of time," and that therefore the re- execution. The allegation at best is a mere spondent is not "in a position to say any- conclusion, and we are rather of the opinion thing because he is in no wise concerned with that the pleader only intended to state, any agreement except the one as to the re- though, it may be admitted, by the employceiving of this note as payment." The claim ment of inapt language, what the fact is, is, in other words, that the note was intended that the note was given as an evidence of the as an absolute payment, and respondent, not indebtedness payable at the maturity of said being a party to the agreement, cannot set note. up the defense of failure of consideration, There seems to be no question raised here which defense would be available to the that a surety may defend upon the ground principal, or Chambers. We do not think of an absence or failure of consideration of a the facts as exhibited by the record warrant | promissory note to which he is a party, if any such conclusion. On the contrary, we the action thereon is by the original payee. think it is plain, from the facts before us, The liability of a surety cannot be greater that the note was not intended as a payment, than that of the principal (Stockton, etc., but that it was designed only as an evidence Society y. Giddings, 96 Cal. 90, 30 Pac. 1016, of the indebtedness, and therefore operated 21 L. R. A. 406, 31 Am. St. Rep. 181), and, only as a postponement or suspension of the where there is a failure of consideration to right of action on such debt to a future time; support it, the note would be just as amenable that is, until its maturity. The contention of to attack upon that ground by a surety as appellant is founded on his construction of by the principal --where the suit is between certain language contained in the agreement the original parties, and no rights of an inno(the “fourth writing") that the note is ac- cent holder are involved.

cent holder are involved. But the respondent cepted "in lieu of the sum of $2,500," etc. It claims that he was a principal. While we is doubtful whether that language warrants cannot say that the evidence justifies that the construction thus given it by appellant; i conclusion, it is nevertheless apparent therebut, if it may be said to be reasonably suscep- from that the respondent bad an interest in the tible of such construction, we think that it is agreement between plaintiff and Chambers, equally capable of the opposite interpretation' independent of that involved in his inere liathat it was intended, and so given and accept. :bility upon the note. He testified that he beed, for the purpose merely of deferring to the came a party to the note because, among othdate of its maturity the right to bring suit er reasons, he expected that Chambers would upon the debt of which it constituted written make money out of the property and "would evidence. But to impart to the note the effect reimburse me to a certain extent out of the contended for by appellant, there should be mine. I started him in business when he had an express agreement that it was to be nothing, and, if he accumulated a competence, deemed and accepted as an absolute payment. I expected to be reimbursed for what I had It is well settled that the note of a debtor done for him when he was poor and needy." or of a third party, if not itself paid, does He also stated that he and plaintiff had “disnot constitute a payment unless received by cussed the matter about accepting the note." the creditor under an express agreement to By the statement that he expected to be "reaccept it as an absolute payment. “The pre- imbursed to some extent out of the mine," sumption is not in favor of its being received the respondent evidently meant that Chamas payment." Bonestell v. Bowie, 128 Cal.

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bers intended to remunerate him for his acts 515, 61 Pac. 78; Dingley v. McDonald, 124 of assistance (signing the note, etc.) as soon as Cal. 90, 56 lac. 790; Savings Bank v. Central he could make the money from the mines, and Market Co., 122 Cal. 33, 54 Pac. 273; Delea- from this it is reasonably inferable that there piazza v. Foley, 112 Cal. 380, 386, 44 Pac. 727; was some understanding between Chambers Savings, etc., Soc. v. Burnett, 106 Cal. 514, and respondent to that effect. But whether :528, 39 Pac. 922; Steinhart v. National Bank, there was such an understanding or not, or 94 Cal. 362, 29 Pac. 717, 28 Am. St. Rep. 132; whether, as appears to be the fact, the reComptoir D'Escompte v. Dresbach, 78 Cal.

spondent was thoroughly familiar with the 15, 20 Pac. 28; Welch v. Allington, 23 Cal. antecedent transactions of plaintiff and Cham322. There is no express agreement here that bers as to the property involved, and upon the note should be treated and accepted as the faith of such knowledge and his expectaa payment. The allegation in the answer tion of participating in the profits of the that the note was given as a payment does mines under the ownership and development not affect our views upon the subject. We do by Chambers signed the note, it was, in any not know how the respondent was led to event, his unquestionable right in this action make such an allegation in his pleading, since, by the original payee to interpose the defense in his brief, he vigorously opposes the view of want of consideration, even though he which the language of the averment seems played no other roll than that of surety. to imply. We do not feel bound by the con- The evidence shows that the consideration struition of a document by a pleader which for the note in dispute, for a time at least, is plainly at variance with the language of failed absolutely, because after its maturity, the instrument itself, as well as with the ex- and long before the commencement of this

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action, the plaintiff entered into a contract or are connected therewith. The note was with the Great Western Gold Company, by given for a portion of the purchase price of the provisions of which the latter was to a tract of land to be thereafter conveyed by buy from the plaintiff the identical property the plaintiff under his agreement with the which is the object of the agreement between defendants and their associates, was executplaintiff and Chambers. Plaintiff himself ed in pursuance of said agreement at the testified: "I received $1,000 for the same

same time with the execution of the agreeproperty from the Great Western Gold Com- ment, was a part of the same transaction, pany on the 16th day of October, 1903. Some and is to be interpreted and regarded as a time after this I received $500 besides the part of the agreement made between the par$1,000 from the Great Western Gold Com- ties at that date." The note here was, as pany for the same property. I still hold the were all the other writings of which we title and the possession of the Scottish Chief have made mention, an outgrowth of the and Santa Clara mines, sometimes known as

transaction between the parties and a part the Vandevere mines. I gave the Great

and element thereof, and all said writings, Western Gold Company possession, I think,

including the note, are to be construed as on the 16th day of October, 1903, for a one agreement. In the case from which we time, and I have possession of it now." It have just quoted the court further says: is thus seen that appellant, a short time “The respective obligations of the parties to an after the date of the maturity of the note

agreement for the conveyance of land, when here, placed himself in a position in which

the purchase money is made payable in inhe could not have performed his part of the

stallments, are to be construed as independagreement with Chanibers, even if he had de- ent obligations, or as dependent and concursired to do so, unless he had been able to rent, according to the terms in which the make such terms with the corporation as agreement is express. If an installment is would have enabled him to convey the prop- made payable prior to the date at which erty to the defendants. The consideration

the conveyance is to be made, the obligation for the note had failed by the act of the to pay the installment and to make the conplaintiff hinself. At the time of the com- veyance will be regarded as independent oblimencement of this action his agreement with gations, and the seller can maintain an acthe corporation, it appears, ceased to be bind- tion for the recovery of the installment withing, and he again took possession of and

out the execution or tender of a conveyance; assumed control over the property. We think whereas, if the payment of the installment that the significance of the circumstance of is to be made upon the execution of the conthe contract of option between plaintiff and veyance, no recovery thereof can be had, exthe Great Western Gold Company is in the cept upon the averment and proof of such fact that the plaintiff thus gave evidence of execution, or a tender thereof. If the agreehis intention of treating his contract with ment is silent upon this point, the obligaChambers as no longer existing or binding. tions will be regarded as mutual and deAnd if he did not so intend to treat it, why pendent, so that neither party can have a did he assume complete control over the right of action against the other without a property and attempt to dispose of it to previous performance or offer to perform ou other parties? If he intended to hold Cham- his part; and if the time for the performbers and the respondent to their contract,

ance of the conditions on both sides has he should have first tendered them a deed expired, it is incumbent on either party, beto the property, or offered to convey to them fore he can enforce a performance by the such interest in it as would be commensurate other, to do or offer to do all that by the with the money already paid and the sum

agreement he is required to do." The agreedue on the note. He admitted that at no ment here is silent upon "the point" mentime did he offer to execute a deed to the

tioned in the opinion.

the opinion. The time within parties or to either of them. These views

which the conditions here were to be perare, of course, based upon the theory that the formed, in the absence of express language transaction between the parties involved a fixing a time, can only be held to be that contract of sale, and not an option, as con

which expired coincidently with the date of tended by appellant. As we have before de- the maturity of the note. clared, we have no doubt that the agree- Complaint is made of certain rulings of the ment was one to sell on the part of the plain- court upon questions of admissibility of evitiff, and to purchase on the part of Cham- dence, but they are not sufficiently important bers. We think the case at bar comes with- to demand special attention. The rulings, to in the principles laid down in the case of which exceptions were reserved and claimed McCroskey v. Ladd, 96 Cal. 456 et seq., 31

here to have been prejudicial to plaintiff, Pac. 558, where the court says that an "ac- even if they be conceded to be erroneous tion upon a note, being between the orig- (and we do not so hold them to be), could inal parties thereto, is subject to an inquiry not, in our opinion, have resulted in injury into its consideration, and is also subject to to the appellant. any equities existing between the parties The findings are amply supported by the which arise out of the execution of the note, evidence, and the judgment is just, equitable, and conscionable. Under the facts, as they adverse judgment, plaintiff appeals. Afare recorded here, any other judgment would firmed. be the reverse.

Coburn & Collier, for appellant. R. S. The judgment and order are affirmed.

Taylor, for respondents.
We concur: CHIPMAN, P. J.; BUR-
NETT, J.

HART, J. This is an action on a promissory note. A demurrer was sustained to

the amended complaint, with leave granted (6 Cal. App. 197)

to the plaintiff to file a second amended comWILLS V. BOOTH et al. (Civ. 350.) plaint within 10 days. The plaintiff failed (Court of Appeal, Third District, California.

and refused to further amend his complaint Aug. 5, 1907.)

within the time allowed, and judgment was 1. EXECUTORS AND ADMINISTRATORS-ALLOW. thereupon entered in favor of the defendants ANCE TO SURVIVING WIFE -NOTICE.

dismissing the action. From the judgment so Under Code Civ. Proc. § 1469, providing entered, this appeal is taken. that if, on return of the inventory of the estate of a decedent, it appears therefrom that the

The note in question was made and delivvalue of the estate does not exceed $1,500, the ered by one A. M. Williams to the defendcourt shall, by order, require all persons inter- ant Booth and 1. O. Burleson: the latter ested to appear to show cause why the whole of the estate shall not be assigned to decedent's

deceased at the time of the commencement of widow, and that notice thereof shall be given

this suit. The note was executed on the 1st as provided in sections 1633, 1635, and 1638, day of July, 1902, for the sum of $5,000, paysuch notice need not be given by publication,

able six months after date, with interest at those sections providing only for notice by posting, or if, on final hearing, the judge shall

the rate of 6 per cent, per annum. On the deem the notice insufficient, then that he may 4th day of January, 1903, two days after its order such further notice as may seem to him maturity, the note was indorsed by the payees proper.

to the plaintiff. Burleson died on the 18th 2. SAME-ACTIONS AGAINST. The estate of decedent having been of less

of October, 1903, and on the 19th day of Janvalue than $1,500, and so, under Code Civ.

uary, 1904, his widow, one of the defendants Proc. § 1469, been assigned to his widow, ac- herein, was duly appointed administratrix of tion cannot be maintained against the adminis

his estate by the superior court of Siskiyou tratrix on a note of decedent.

county. "On the 20th day of February, 1901, 3. SAME – PRESENTMENT OF CLAIM – ComPLAINT.

the inventory and appraisement of said estate The complaint in action on a note of dece- was filed in said court, in which all the propdent against his administratrix must show that

erty belonging to said estate was appraised the claim, accompanied by a copy of the note, was presented to the administratrix, in ac

at the sum of $1,400." Thereafter, and on cordance with Code Civ. Proc. $8 1494, 1497, the 5th day of April, 1904, a decree was made and was rejected.

by the superior court distributing all of said [Ed. Note.--For cases in point, see Cent. Dig. estate to the widow. It is alleged in the comvol. 22, Executors and Administrators, $ 1808.]

plaint “that no notice to creditors of said 4. BILLS AND NOTES – DEMAND NOTE – IN- deceased was ever ordered published, and no DORSEMENT-PRESENTMENT FOR PAYMENT. A note, payable at a definite time, being

notice to such creditors was ever published.” indorsed by the payees after maturity, is then It is further alleged "that on or about the to be treated as one payable on demand, so Sth day of June, 1903, the said A. W. Wilthat to make the indorsers liable thereon there

liams left the state of California, as plaintiff must be a presentment and demand on the maker within the time prescribed by Civ. Code, s

is informed and believes, and has never re3135, or else a satisfactory showing excusing turned thereto, and since said date he has the failure to do so.

not had a place of business, as plaintiff is in[Ed. Note.--For cases in point, see Cent. Dig.

formed and believes." That on the 16th day vol. 7, Bills and Notes, $8 1022-1028.]

of February, 1905, the plaintiff caused the 5. SAME-ACTION AGAINST INDORSERS-COMPLAINT – ExcUSING NONPRESENTMENT FOR

said note to be presented at Hornbrook, Cal., PAYMENT.

the same being “the place where said note The complaint against the indorsers of a was dated and the place for the payment note does not sufficiently show excuse for not thereof; but the said A. W. Williams was not presenting it for payment to the maker; it

in said Hornbrook or in the state of Calimerely alleging on "information and belief," without giving the grounds therefor, that the fornia, nor had he been therein since on or maker had left the state, and that the note was about the 8th day of June, 1903, as aforepresented for payment at the place of its date,

said, as plaintiff is informed and believes." when the note was silent as to the place of payment, and this was not shown to have been That thereupon, and on said 16th day of the maker's place of residence or business, and February, 190.), the plaintiff caused said no diligence to find the same is shown.

note to be presented to said defendants, with [Ed. Note. For cases in point, see Cent. Dig.

a notice of the fact that Williams, aforesaid, vol. 7, Bills and Notes, $ 1497.]

was not in California, that the said note had Appeal from

from Superior Court, Siskiyou not been paid, and “that plaintiff looked to County; J. S. Beard, Judge.

said defendants for its payment." The deAction by William L. Wills against Wil- murrer was both general and special. The liam Booth and Mary A. Burleson, adminis- | grounds of the special demurrer present one tratrix of I. C. Burleson, deceased. From an of the important questions submitted for de

to appellant. She was duly appointed ad

cision, and are thus stated: “That said com- , may be paid in the due course of administraplaint does not show that demand was made tion. The widow in this case, in her individuupon the maker, Williams, upon the maturity al capacity, was as much a stranger to the of said note or attempted to be made at the transaction as any other person who had last known place of residence or business of nothing to do with making or indorsing the said debtor. That notice of the absence of note. The estate, as shown by the averments said A. W. Williams, the maker of said note, of the complaint, was not one in which claims from the state of California, at the date when of creditors of the deceased could be filed and demand for payment should have been made, allowed, or otherwise acted upon. It was, was not given or attempted to be given to as we have seen, an estate as to the disposidefendants, or either of them, within the time tion of which the court had but one thing to required by law. That

That no notice of the do—make a decree, after proper proceedings, nonpayment of said note was given to defend- assigning the whole thereof to the widow. ants, or either of them, within the time al- And if the estate had been of greater value lowed by law therefor."

than one which may thus be set apart to the We think the court properly sustained the widow, it would have to appear from the demurrer as to both of the defendants. The averments of the complaint that a claim, acpleaded facts show that the respondent Mary companied by a copy of the note (section 1497, A. Burleson was the widow of I. C. Burleson, Code Civ. Proc.), had been presented to the who, jointly with Booth, became an in- administratrix, in accordance with section dorser of the note; that is, he was one of 1494 of the Code of Civil Procedure, and the original payees who indorsed the note that the same had been rejected. The right

to sue an executor or an administrator is a ministratrix of her deceased husband's estate, statutory one, and, if it does not appear and in the due course of the proceedings from the complaint that the statutory requireof administration the court set apart and as ments as to claims against the estate have signed to her all said estate. The inventory been complied with, a cause of action is not and appraisement showed that the value of stated. The complaint failed absolutely to all the property of said estate did not exceed state a cause of action against Mrs. Burleson. the sum of $1,500, and it was therefore not We think that it is now the settled rule in only within the power but the duty, of the this state that, where indorsers of a negoticourt, to assign the whole of said estate to her able instrument are sought to be charged, it for her use and support. Section 1469, Code is necessary, first, that there should be a preCiv. Proc.; Estate of Palomares, 63 Cal. 402; sentment and demand upon the maker within Estate of Atwood, 127 Cal. 430, 59 Pac. 771. the time prescribed by the statute, or, in deIn the last-mentioned case it is said: "After fault thereof, a satisfactory showing exthe estate is set apart, there shall be no fur- cusing the failure to do so. Section 3133 of ther proceedings in the administration. Sec- the Civil Code provides: "The apparent mation 1469, supra. Evidently, notice to credit- turity of a promissory note payable at sight ors is a proceeding in the administration, or on demand, is: (1) If it bears interest, one and therefore the statute is express that such year after its date, or (2) if it does not bear notice must not be given after the estate is interest, six months after its date." It is so set apart to the widow.” The kind of said that a negotiable instrument indorsed notice required in such a case is prescribed by after maturity is regarded as equivalent to the section itself, authorizing and requiring one payable on demand. Such a bill or note, the court to set apart the estate to the family. though overdue, continues to be negotiable, It is therein provided that: “Xotice thereof and is in the nature of a new bill payable on shall be given and proceedings had in the demand. Daniel on Negotiable Instruments, same manner as provided in sections 1033, $$ 611, 996; Beer v. Clifton, 98 Cal. 326, 33 1635 and 1638- of this Code.” Those sec- Pac. 201, 20 L. R. A. 580, 35 Am. St. Rep. tions do not expressly provide for publication 172. The note sued on was indorsed to the of notice in a newspaper, or other than by plaintiff two days after the date of its muposting “in at least three public places in the turity, and therefore, in the hands of the county,” or, “if, upon final hearing,

indorsee, became a note payable on demand, the court or judge thereof should deem the and under section 3135, supra, it was the notice insufficient from any cause, he may duty of the plaintiff to have made a demand order such further notice to be given as may upon Williams, the maker, or have shown seem to him proper."

some reasonable excuse for not so doing, beThe averments of the complaint show that fore he could charge the indorsers. The case the court acted within its jurisdiction in mak- of Machado V. Fernandez, 74 Cal. 302, 16 ing the order or decree assigning the entire Pac. 19, seems to hold a contrary view. It is estate to the widow, and therefore no reason there said, after referring to the several is shown why she, as administratrix, should sections of the Civil Code pertinent to the have been made a party to this suit. The subject, that a distinction is made as to the object of a suit against the representative of liability of indorsers between notes payable a deceased person is, of course, to bind the on demand with interest and those payable estate by any judgment which may thereby in demand without interest, and that in the and therein be obtained, and that the same, one case the indorser is released from liabil

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