The record-union., 1895-12-21

said written guaranty signed by said
parties was obtained by misrepresenta-
tion, and is without consideration and
void" they yet were willing to pay the
rent for December and January if
Bailey neglected to pay the same, and
would not be responsible for any rent
accruing after that date, and requir-
ing him to proceed against Bailey to
collect the rent, and, in case Of his fail
ure to pay, to terminate the lease; ito
proceed by action to collect said rent
from said Benjamin Bailey and to re-
cover the possession of said premises
and terminate said lease within ten
days after the service of this paper
upon you, the said (naming the guar
antors) will proceed in equity by ac-
ton against you and said Bailey to
compel you to proceed against said
Bailey for the collection of such rent,
to recover said premises and to termin-
ate said lease and to rescind and re-
woke said guaranty" The notice also
offered, on request, to pay Coolot a rea
sonable sum for the fees of his attorneys
and costs of such action. Coolot
promptly declined to proceed as re-
quired against Bailey, and this action
was commenced January 26, 1894.
The action is by the guarantors
against the defendants Coolot and
Bailey, and is understood to be based
upon the last clause of Section 1000 of
the Code of Civil Procedure, which pro-
videS that an action may be brought
against two or more persons for the
purpose of compelling one to satisfy
debt due to the other for which plaintiff
is bound as a surety The action is also
based upon the contention that the
plaintiffs never became bound to Coolot
at all for the reasons which will appear
further on; and that, if they ever
were bound, the guaranty was a con-
tinuing guaranty under Section 2S14,
Civil Code, and was duly revoked under
Section 2S15, Civil Code
1t is contended on behalf Of plaintiffs
that the signing of the guaranty by
them was merely an offer on their part
to CoOlot to become surety for Bailey,
and thatacceptance byCoolot and notice
of such acceptance to them was neces-
sary to complete the contract. The facts,
however, do not sustain this view of the
transaction. Coolot was willing to
make the contract to build the hotel
and lease it to Bailey for five years
only upon condition that the latter
would furnish surety that the rent
would be paid as provided in the lease.
1t was rather an offer from Coolot than
an offer to him.
IF the guaranty is made at the re-
quest of the guarantee, it then becomes
the answer of the guarantor to pro-
posal made to him, and its delivery to
OF for the use of the guarantee COM
pleteS the communication between
them and constitutes a contract" Oa-
Wis VS.. Wells, 104 u. S. 159)
Suppose it is viewed as an offer by the
guarantorS, or as a proposition on their
part to guarantee the payment Of the
rents if Coolot would build the hotel
and lease it to Bailey, then it would be
like the cases referred to in Fellows VS..
P:rentiss, 46 Am. Dec. 491, where the
court said: In these cases the defend
ant asked the plaintiffs to sell on
promise to guarantee the payment.
They assented and delivered the goods.
The proposition of the one party was
accepted by the act of the other. There
was nothing to raise the presumption
that an answer was contemplated"
Coolot had the lease drawn up and de-
Hvered it to Bailey to procure the sure
ties. Bailey first signed it himself, then
procured the signatures of the SuretieS,
and then met the offer of Coolot by pre-
senting him the lease thus signed,
WhereupOn the latter executed it and
thus made the contract complete. The
promise of the plaintiffs was not col
lateral promise. 1t is an original con-
tract because there was no contract un-
til the lease signed with the name of the
lessee and the names of the guarantors
was delivered to COolOt. Bailey was
the agent of the guarantors, author
lied to make such delivery
It is the settled law in this State and
elsewhere that the promise of a guar
antor is not within the statute of
frauds if made before the delivery of
the contract, or If made at such time or
under such circumstances that the con-
tract and guaranty constitute in fact
one transaction In such cases the
guaranty is considered an original con-
tract supported by the consideration Of
the contract which is guaranteed.
(Ford VS.. Hendricks, "a Cal. 613; How
land VS. Aitch, 80 Cal. 135; Crooks VS..
Tully, 30 Cal. 257)
If this lease instead of being a single
original transaction, had been COM
pleted contract between Coolot and
Bailey, and the plaintiffs had become
guarantors afterward, then another
and Independent consideration would
have been required. Even in such case
the expressed and receipted considera-
ton of 81 would be sufficient to bind the
guarantOrS.
In Davis VS. Wells, cited above, it is
said. 1T is not material that the ex
pressed consideration is nominal. That
point was made as 10 a guaranty sub
stantially the same as this, in the case
of Lawrence vs.. McCalmont, z Howard
452. and was overruled. Mr.. Justice
Story said the guarantor acknowledged
the receipt of the 81, and is now es-
topped to deny it. If she has not re-
ceived it she would now be entitled to
recover it. a valuable consideration,
however small or nominal, if given or
stipulated for in good faith, is, in the
absence of fraud. sufficient to support
Of nd
this is equally true as to contracts of
guaranty as to other contracts
stipulation in consideration of 81 is
Just as effectual and valuable consid-
Grafton as a larger sum stipulated for
or paid. The very point arose in Dutch
man vs. Tooth, New Cas-. 511, where the
guarantor gave a guaranty for the pay
1e S,ft . he fIa