Opinion
Department One
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.
COUNSEL:
O'Brien & Morrison, and W. A. S. Nicholson, for Appellant.
Nagle & Nagle, for Respondent.
JUDGES: McKinstry, J. Searls, C. J., and Paterson, J., concurred.
OPINION
McKINSTRY, Judge
[17 P. 938] If the moneys paid by the plaintiff on taking up the notes made by Buckman were paid out of funds of the maker in the hands of plaintiff, the payments were in effect payments by the maker of the note. But there is at least a substantial conflict in the evidence with respect to the issue as to whether the plaintiff did pay the notes out of funds of the maker in his hands, or whether he promised to pay them out of funds of the maker dedicated to that purpose.
As between themselves, the defendant was an accommodation indorser for Buckman, the maker. But there is nothing on the face of the notes to indicate that relation, and there is evidence that as to plaintiff, it was understood that the defendant should be bound in the character in which he assumed to act. Even if the plaintiff, indorsee, and subsequent indorser knew that, as between themselves, the defendant indorsed the note for the accommodation of Buckman, he could still hold him as indorser if he consented to receive them only in case the defendant should bind himself to plaintiff as indorser.
One of the two joint makers of a note may be a surety only, as between himself and his co-promisor, and yet, as to the payee, his apparent and real character be that of principal. (Harlan v. Ely , 55 Cal. 340; Chase v. Evoy , 58 Cal. 353; Farmers' Nat. G. B. v. Stover , 60 Cal. 387.)
Section 2832 of the Civil Code does not prohibit the apparent maker in such case from agreeing that he shall be bound as maker, and there is no principle which will render nugatory the actual and apparent contract of an indorser.
The complaint was upon the "common counts" for money paid, laid out, and expended, for money lent, and for money had and received; each count being separately stated. The prayer was for the sum alleged in each count to be due upon the cause of action therein stated, to wit, $ 1,027.50.
The court found that the plaintiff paid, laid out, and expended for the use and benefit of the defendant $ 1,027.50.
The court failed to find upon the issues made by the averments of the other counts of the complaint and the denials thereof.
The finding and judgment upon the first count must be held to be a finding and judgment against the plaintiff upon the other counts. Clearly in ordinary cases there must be a distinct finding upon each material issue. But in a case like the present the prayer may be referred to as illustrating the scope of the action, and here the prayer clearly indicates that the counts are in the alternative, -- the same cause of action being stated in different forms. If such practice seems not to accord with the methods prescribed by the Code of Civil Procedure, the apparent anomaly arises from the fact that the common counts have been allowed. But the right to rely upon them has been settled by the earlier decisions in this state, which, even if we were inclined to do so, we are not authorized to disregard. (Freeborn v. Glazer , 10 Cal. 337; De Witt v. Porter , 13 Cal. 171; Buckingham v. Waters , 14 Cal. 146.)
Where a subsequent indorser has paid the whole note, or a part of it, he may recover from a prior indorser the amou nt paid as so much money paid, laid out, and [17 P. 939] expended. (Butler v. Wright, 20 Johns. 367; Baker v. Martin, 3 Barb. 634; Pomeroy's Smith on Mercantile Law, 327, note 3.)
Judgment and order affirmed.