The record-union., 1891-02-16
SUPREME COURT DECISIONS.
Filled February 5, 1891. ]

Shankland.
For respondent, Barclay, Wilson &
carpenter and Gottschalk- d Luckel.
DEPARTMENT ONE.
The SOUTHERN CALIFORNIA A.
NATIONAL BANK OF Los
ANGELES, Respondent,
ii. G. WYATT EFT AL,
Defendants, and
A. III. BUSCH, Appellant.
This is an action upon promissory
note, dated December 5, 1888, and payable
ninety days after date. The instrument
appears to be a joint note, signed by each
of the defendants, with the word surety
written after the name of defendant
Busch.
The defendants, other than Busch, suf-
fered default. He answered and alleged
that he signed the note neither as maker
nor acceptor, and THAT he wrote his
name upon said negotiable instrument as
surety without any consideration what
ever, but solely for the accommodation of
the makers of said instrument, and de-
ivered it with his name thereon to CO.
defendant, Mitchell, who delivered tho
same to the plaintiff, all of which facts
were known to the plaintiff at the time of
said delivery" He further alleged that
no notice of the presentment and nom
payment of the note was given to him for
more than ten days after its maturity, and
that he never waived its presentment or
notice of it's dishonor.
The court below gave judgment against
all of the defendants, ana the defendant,
Busch, appeals.
1t is contended for the appellant-and
this is the only point made-that as he
wrote surety after his name and was
known by the payee to be a surety for
the other makers, he became, in legal
effect an in6nrSar and no a ms ynr M ha
note, and was discharged from liability
thereon, for the reason that no notice Of
its presentment and non-payment was
given to him within the time prescribed
by statute. This position is rested upon
Section 3l0S of the Civil Code, which reads
las follows:
Zone who writes his name upon nego-
TABLE instrument, otherwise than as a
maker or acceptor, and delivers it, with
his name thereon, to another person, is
called an indOrser, and his act is called
Endorsement"
We do not think the judgment can be
reversed on this ground. The next two
sections of the Code are as follows:
Section 3l09. One who agrees to in
dorse a negotiable instrument is bound to
write his signature upon the back of the
instrument, if there is sufficient space
thereon for that purpose.
Sec. BIO. When there is not room
for signature upon the back of nego-
table instrument, signature equivalent
to an Endorsement thereon may be made
upon paper annexed thereto"
In FesSenden VS.. Summers (62 Cal. 4Sf,
cited by appellant, the note was indorsed
in blank by the defendant, Thompson,
before delivery to the payee. The indorse-
ment was for the purpose of adding credit
to the note, and plaintiff made q loan upon
the strength of the Endorsement. The
question was whether Thompson was to
be treated as an indorser or guarantor of
the note. 1t was held that under Sections
BIOS and BIZ of the Civil Code he was an
indorser, and as such entitled to notice of
non-payment.
That case is not in point, for the reason
that here the appellant did not indorse
the note, but signed his name to it in
the place of a maker.
Since the decision of Aud VS.. Magruder,
in 1858 90 Cal. 2S2), where, as here, it ap-
peared from an addendum to the name of
one of the makers of the note in suit that
he was surety thereon, it has been uni
formly held by the Supreme Court of this
State that where one Subscribes his name
to a pronissory note in the place of q
maker, he will, as between himself and
the payee, be treated maker and held
liable as such, though he was in fact only
a surety for the other makers, and this
was known to the payee when he received
the note. (Aud VS.. Magruder, 10 Cal. 2S2;
bdllt vs.. SOIGusth, II 1dl lO1, DduIOH vs..
Pardow, "a Cal. 27S; Chafoin VS., Rich, II
Cal. 476.)
This rule has not been changed by the
code, and the appellant was therefore not
an indOrser OF the note, and his liability
did not depend upon due notice of de-
mand and non-payment.
We think the Judgment should be at-
frmed, and so advise. BELoHER, C. J.
Weconcur:
FooTE, c.,
VAN CLIEF, c.
THE COURT.
For the reasons given in the foregoing
opinion, the Judgment is affirmed.
Filled February 5, 1871
Appeal from Superior Court of Los
Angeles County-Walter Van Dyke,
Judge.
For appellants, Barclay, Wilson & Car
penter.
For respondent, Chapman .S Hendrick
and Graves, O'Melveny IL Shankland.
DEPARTMENT ONE.
ABE HAss, ASSIGNEE, ETC,
Respondent,
VS.. No. 13. 800,
WHITTIER, FULLER & Co.,
Appellants.
The object of this action is to recover
from defendants $3.50 3d. the value OF
certain personal property alleged to
have been sold and delivered to defend
ants by the lnsolvent in payment of his
debt of 5000, within one month before the
filing of the petition against him by his
creditors, contrary to the provisions OF
Section So of the Insolvent Act of 1880
The judgment of the court below was in
favor of plaintiff for the sum demanded
and the defendants appeal on the judg-
ment-roll, contending that neither the
complaint nor the findings of fact states q
action a Upnptal 1avlT IN
the complaint was overruled.
So far as applicable to this case. Section
55 of the Insolvent Act is as follows:
''If any person, being insolvent, or in
contemplation of insolvency, within one
month before the filing of petition by OF
against him, with view to give a prefer
ence to any creditor or person having a
claim against him, = makes any
payment, assignment, transfer, or con-
veyance of any part of his property
the person receiving such pay
ment, having reasonable cause
to believe that such person is insolvent
and that such payment is
made with view to prevent his property
from coming to his assignee in insolvency
or to prevent the same from being dis
tributed ratably among his creditors Oh
to defeat the object of, or in any way tC
hinder, impede or delay the operation OF
or to evade any of the provisions of this
Act, such transfer, payment, conveyance
pledge or assignment is void, and the
assignee may recover the property, OF
the value thereof, as assets of such insolv.
ent debtor''
1t is neither alleged in the complaint
nor found as a fact by the court, that the
insolvent transferred the property to the
defendants with a view to give prefer
ence to any creditor or person having {
claim against him. but it is found thai
the transfer was made to- and received
Joy the defendants, in satisfaction of s
valid debt of 5000 due them from the in.