Gould v. Keith

California Court of Appeal

Gould v. Keith

49 P.2d 623, 9 Cal. App. 2d 284, 1935 Cal. App. LEXIS 1305

CourtCalifornia Court of Appeal

DecidedSeptember 26, 1935

DocketCiv. 10418

StatusPublished

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This text of 49 P.2d 623 (Gould v. Keith) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gould v. Keith, 49 P.2d 623, 9 Cal. App. 2d 284, 1935 Cal. App. LEXIS 1305 (Cal. Ct. App. 1935).

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Opinion

GOULD, J., pro tem.

Legal principles logically elucidated by the late Chief Justice Shaw in Stroud v. Thomas, 139 Cal. 274 [72 Pac. 1008, 96 Am. St. Rep. 111], and in Braun v. Crew, 183 Cal. 728 [192 Pac. 531], determine adversely to appellant, the points involved in this appeal. It is true that appellant as endorser of the mortgage note would be released from liability by any unauthorized alteration of the obligation assumed; but when respondent as payee of the note entered into an agreement with the maker to reduce the rate of interest and to extend time of payment, this agreement, as per the finding of the trial court, was not supported by a con *285 sideration and was therefore unenforceable and respondent was not thereby bound to forbear suit during the time specified in the extension. If it did not modify the original note it had no effect upon the liability of the endorser. Furthermore, the acceptance by the payee of the note of $35 instead of $40 on past due interest did not change the terms of the contract with regard to the guarantor, but amounted merely to an executed oral gift by the payee of the $5. The judgment, therefore, was properly entered against such endorser.

Judgment affirmed.

Crail, P. J., and Wood, J., concurred.

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GOULD, J., pro tem.

Legal principles logically elucidated by the late Chief Justice Shaw in Stroud v. Thomas, 139 Cal. 274 [72 Pac. 1008, 96 Am. St. Rep. 111], and in Braun v. Crew, 183 Cal. 728 [192 Pac. 531], determine adversely to appellant, the points involved in this appeal. It is true that appellant as endorser of the mortgage note would be released from liability by any unauthorized alteration of the obligation assumed; but when respondent as payee of the note entered into an agreement with the maker to reduce the rate of interest and to extend time of payment, this agreement, as per the finding of the trial court, was not supported by a con *285 sideration and was therefore unenforceable and respondent was not thereby bound to forbear suit during the time specified in the extension. If it did not modify the original note it had no effect upon the liability of the endorser. Furthermore, the acceptance by the payee of the note of $35 instead of $40 on past due interest did not change the terms of the contract with regard to the guarantor, but amounted merely to an executed oral gift by the payee of the $5. The judgment, therefore, was properly entered against such endorser.

Judgment affirmed.

Crail, P. J., and Wood, J., concurred.

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49 P.2d 623, 9 Cal. App. 2d 284, 1935 Cal. App. LEXIS 1305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gould-v-keith-calctapp-1935.

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