(190 P.) times in the police relief and pension fund sufficient money to have paid the plaintiff's pension if he should be found entitled to the same. Upon the foregoing facts as found by the trial court it rendered its judgment in the plaintiff's favor, directing a writ to issue as prayed for, and from such judgment the defendants have prosecuted this appeal. meeting to be held in the evening of the last- board of police commissioners for want of named day. The plaintiff endeavored to com- jurisdiction in the board to make the same. ply with this direction as to his examination Upon the hearing of the plaintiff's petition by the police surgeon, but the latter refused for a writ of mandate in this case, it was to set a date for said examination earlier affirmatively made to appear that the plainthan January 15, 1904, at which time the tiff's disabilities which had led to his original plaintiff was to appear to be examined by retirement from active service in the departhim. On the evening of January 12, 1904, the ment had not ceased but still existed, and that plaintiff appeared before said board, sitting by reason thereof the said plaintiff continued as police relief and pension fund commission- to be unable to perform active duty as a ers, according to their direction, and inform-patrolman in said department. It was also ed them of his inability to procure said exam- conceded at the trial that there was at all ination by the police surgeon before January 15, 1904, and requested a postponement of his matter until that time. This request was refused and an immediate hearing ordered to be proceeded with, to which the plaintiff objected upon the ground of the shortness of the time, the absence of his attorney to represent him, and of his witnesses, and requested a continuance until he could procure the attendance of these. This request the board The charter of the city and county of San also denied, and thereupon proceeded, with- Francisco provides in section 3, c. 10, art. 8, out any further hearing or trial or investiga-thereof, thattion, and without any examination of the "Any member of the department who shall facts of the case, to pass a resolution purport- become physically disabled by reason of any ing to restore the plaintiff to active duty in bodily injury received in the performance of his the police department of the city and county duty upon filing with the commissioners a veriof San Francisco as a patrolman, and to order fied petition setting forth the facts constituting the plaintiff to report to the chief of police on such disability and the cause thereof, accompathe following day for assignment to active nied by a certificate signed by the chief of poduty as such. Plaintiff did not report to the lice, the captain of the company to which he chief of police in accordance with said order, belongs, and by two regularly certified physicians of the city and county recommending his and thereupon charges of insubordination retirement upon a pension on account of such were presented by the chief of police to said disability, may be retired from the department, board of police commissioners for the plain- upon an annual pension equal to one-half the tiff's said failure to report for active duty. amount of salary attached to the rank which These charges were set for hearing by and be- he may have held three years prior to the date fore the board of police commissioners for of such retirement, to be paid to him during January 26, 1904, and came on for hearing on his life and to cease at his death. In case his the evening of said day, whereupon plaintiff disability shall cease, his pension shall cease, appeared and objected to said proceedings up-rank he occupied, at the time of his retireand he shall be restored to the service, in the on the ground of want of jurisdiction in the said board to make their said order restoring him to active duty, and hence of a want of [1, 2] In the case of Kavanagh v. Board of jurisdiction in them to try him upon the Police Pension Fund Commissioners, 134 Cal. charge of insubordination for any disobedience 50, 66 Pac. 36, it was held that a person enof said former order. The board of police titled to a pension from the police pension commissioners overruled his said objection, fund of the police department of the city and and at once proceeded to find the plaintiff guil- county of San Francisco had a vested right ty of insubordination and to dismiss him from to such pension which could not be taken the department. The plaintiff thereafter de-away by subsequent changes in the charter. manded of said board that they vacate and set It is true that this ruling was made in the aside their said several resolutions, and also constraction of a former statute creating a repeatedly demanded his restoration to the police pension fund in said municipality pension roll as a retired police officer and the (Stats. 1889, p. 56); but the Supreme Court, payment of his accruing pension as such. All in the case of French v. Cook, 173 Cal. 126, of these demands were refused, whereupon 160 Pac. 411, points out that the provisions the plaintiff instituted this proceeding in of the present charter of the said city and mandamus to compel his restoration and rein- county are so far similar to those of the earlistatement as a retired police officer, and also er statute as to justify the application of said to compel the payment of his accrued and ac- former case to the charter in its present form. cruing pensions as such. He also instituted The plaintiff herein having been regularly a proceeding in the nature of a writ of review granted his pension upon proof of his disabilito have annulled the aforesaid orders of the ties had, therefore, a vested right to retain ment." his place upon the retired list and to have his [3, 4] Giving to this language of the Supension continued until his disabilities should preme Court full force and effect in its applihave ceased. This being so, the plaintiff, socation to the facts of this case, we are conlong as his disabilities continued, would have strained to hold that the attempted action of been entitled to a writ of mandate to compel the board of police commissioners, acting in the board of police commissioners, acting as a the capacity ex officio of a board of police reboard of police relief and pension fund com- lief and pension fund commissioners, in demissioners, to maintain him in said position claring that the plaintiff's disabilities had as a retired patrolman and to continue to pay ceased without any proof or showing upon the his pension. French v. Cook, supra. In the subject, and in the face of the practically uncase last above cited the Supreme Court disputed fact, as shown by the trial of this points out that there is no provision in the case, that the plaintiff's disabilities had not present charter of San Francisco confiding to ceased, was entirely beyond their charter the board of police commissioners, acting in powers, and hence that their attempted acts any of its capacities, the power to finally de- in so declaring and in seeking to compel the termine any question of fact in connection plaintiff to report for duty as a patrolman, and in ordering his dismissal from the dewith such a pension. partment for alleged insubordination in refus were each and all void. Being so, the plain- "The board is apparently in the same posi-ing to obey its order to so report for duty, tion," says the court, "with relation to such a matter as is any officer required by law to do a prescribed act in a certain contingency, where no special method is provided by law for the ascertainment of the facts. Under such circumstances it may often be true that there is uncertainty or dispute as to the facts, but in such a case the only resort of the officer is such investigation as he may be able to himself make for the purpose of determining his own course of action. His determination as to the facts, however, is not effectual for any other purpose. If not satisfied as to the evidence of the essential facts he may refuse to act until required to do so by the judgment of some tribunal invested with the power to finally determine such controversy, but before such tribunal any conclusion to which he may have come on the facts has no legal force whatever. The sole question there is whether the facts are in reality such as to require the perform ance of the act, and this altogether regardless of the officer's conclusion as to the facts. The We [5] As to the appellants' contention that the plaintiff, conceding his right to his writ restoring him to his place upon the retired list, is not entitled to that portion of the relief granted as gives him the right to recover his party having a vested right in the performance accrued pension for the reason that he was of the act, if the facts are as claimed by him, not shown to have complied with section 1, has also the right to have his claim as to the C. 4, art. 3, of the Charter, requiring the presfacts judicially determined. The functions of entation of all claims upon the treasury of the board in such a matter as this are really said municipality to the auditor and treasurer ministerial only, and come under the same thereof within a limited period after the deprinciple as would apply in the case of a county mand became due and payable, we are of the or city auditor, in so far as any finality to its opinion that this contention has no merit. conclusions are concerned. * As we We are cited to the case of Geimann v. Board read the charter it gives no judicial function of Police Commissioners, 158 Cal. 748, 112 whatever to the board in such a matter as this, Pac. 553, as supporting the appellants' conconfers upon it no authority to hear and deter- tention in this regard. But we think a clear mine a controversy in a judicial sense. It is not a board or tribunal by law vested with au- distinction exists between that case and the thority to decide a question, and herein lies the case at bar, since, as pointed out in that case, distinction between this case and the cases cited the plaintiff therein was urging a salary in which it was substantially held that the stat- claim as a police officer which did not require ute was to be construed as submitting the ques- approval by the board of police commissiontion to the decision of the board or officer. To ers before presentation to the auditor in ac hold in accord with defendants' claim in this cordance with the requirements of the section connection would be, as we read the charter, to of the charter above referred to; while in . hold that any officer authorized and required the instant case the charter (section 9, c. 10, by law to do a prescribed act upon a prescribed art. 8) specifically requires that claims against contingency, where no method is specially provided for the ascertainment of the facts, is invested with the power to judicially determine the facts, and that his conclusion is a judicial determination as to the facts. Such has never the pension fund shall be passed on by the board of police relief and pension fund commissioners, who shall issue warrants to the persons entitled thereto. It is clear that, (190 P.) received from that body his warrant, he could | 2. Guaranty 75-Creditor may resort elnot have applied to the auditor or treasurer ther to guarantor or security furnished by of the municipality for payment of his claim. principal. The undisputed proofs in this case show that the plaintiff made repeated demands upon the said board for the issuance of his pension warrant, which demands were refused. Не could not do more under the charter, and hence was entitled to a writ of mandate compelling the action of said board in this respect also. Judgment affirmed. Where a debt secured by a mortgage or trust deed is guaranteed, the creditor may resort either to the security or the contract of guaranty; a guarantor not having the right given a surety by Civ. Code, § 2850, to compel the holder of security to apply the same to the payment of the debt. 3. Mortgages 118 given mortgage must express intent to secure performance of contract of guaranty. To justify a court in holding that the pur We concur: WASTE, P. J.; GOSBEY, pose of a mortgage or trust deed given subseJudge pro tem. (47 Cal. App. 793) SHEEHAN v. BOARD OF POLICE COM'RS, etc., et al. (Civ. 3156.) quently to the execution of a contract of guar- (District Court of Appeal, First District, Division 1, California. April 7, 1920. Hearing A trust deed given by principal debtor subDenied by Supreme Court June 3, 1920.) sequent to the execution of a contract of guarAppeal from Superior Court, City and County evidenced by two notes," etc., held not to show anty "to secure the payment to H. of the debts of San Francisco; James M. Troutt, Judge. an intent to secure the performance of the conProceeding by James F. Sheehan against the tract of guaranty as well as payment of the Board of Police Commissioners and others for note, although the declaration of trust set out a writ of mandate requiring the restoration of not only the notes, but also the contracts of the petitioner to the San Francisco police guaranty; the latter being indorsed on the back force and pension roll. From a judgment of the notes. granting the writ, defendants appeal. Affirmed. George Lull, City Atty., and Chas. S. Peery, Asst. City Atty., both of San Francisco, for appellants. Charles J. Heggerty and Knight & Heggerty, all of San Francisco, for respondent. PER CURIAM. The facts in this case are identical with those set forth in the case of Sheehan v. Board of Police Commissioners (No. 3155) 190 Pac. 51, this day decided by this court, and on the authority of that case the judgment is affirmed. (47 Cal. App. 38) KELLEY V. GOLDSCHMIDT et al. (District Court of Appeal, Third District, Cali- 1. Guaranty -An independent contract. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Guaranty.] Appeal from Superior Court, Los Angeles County; Grant Jackson, Judge. Action by H. B. Kelley against Max Goldschmidt and another, individually and as copartners doing business under the fictitious firm name and style of Goldschmidt Bros. From an order denying their motion to discharge an attachment, defendants`appeal. Affirmed. Ernest C. Griffith, Loewenthal, Loeb & Walker, and Loewenthal, Collins & Loewenthal, all of Los Angeles, for appellants. Benjamin E. Page and Arthur C. Hurt, both of Los Angeles, for respondent. HART, J. The appeal in this action is prosecuted by defendants H. H. Goldschmidt and Goldschmidt Bros. from an order made by the superior court in and for the county. of Los Angeles, on August 7, 1917, denying a motion made by said defendants to discharge an attachment theretofore levied upon certain personal property belonging to them. The complaint was filed on the 20th day of June, 1917, against the above-named defendants and one Milton Kauffman, but on the 16th day of July, 1917, plaintiff caused the action to be dismissed as against said defendant Kauffman. From that time on the action was against the guarantors alone, and consequently, upon the contract of guaranty only, and thus the action stood when For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the notice of the motion to discharge the at-, fixtures and all other personal property lotachment was given on August 1, 1917. The complaint was in two counts, in the first of which it was alleged that, on or about the 17th day of August, 1915, at the city of Los Angeles, defendant Kauffman, for a valuable consideration, executed and delivered to Hellman Commercial Trust & Savings Bank, a corporation (hereinafter called the bank), his promissory note in writing for the sum of $19,000, payable on demand; that thereafter, for a valuable consideration, said bank assigned and transferred the said note to plaintiff; that the sum of $5,000 was paid upon said note; and that at the date of the commencement of the action there was due thereon the sum of $14,000. In the second count of the complaint it was alleged that, contemporaneously with the making of said promissory note and as a part of the same transaction, the defendants Goldschmidt delivered to said bank their written contract of guaranty, indorsed upon the back of said note, by which they guaranteed "the payment of the within note or any renewal or extension thereof, and all expenses of collection thereof," and also agreed to pay reasonable attorney's fees in case suit was brought to enforce the guaranty. The assignment of said guaranty to plaintiff was alleged, as well as demand upon defendants, on the 17th day of November, 1916, that said note be paid, and $1,400 was asserted to be a reasonable fee to be paid plaintiff's attorneys. * On June 22, 1917, plaintiff filed an affidavit for attachment, in which he stated: "That defendants in the said action are indebted to him in the sum of $14,585.27 upon an express contract, for the direct payment of money, to wit, upon a promissory note and contract of guaranty, and that such contract was made and is payable in this state, and that the payment of the same has not been secured by any mortgage or lien upon real estate or personal property, or any pledge of personal property. * cated" in the city of Los Angeles in the possession of defendants Goldschmidt Bros. On August 1, 1917, the defendants Goldschmidt served and filed a notice of motion to discharge attachment, supported by the affidavit of Herman H. Goldschmidt, one of the defendants, in which it was stated that, after the signing by Goldschmidt Bros. of said contract of guaranty, Valencia Groves Company, a corporation, to secure the repayment of the indebtedness arising out of said promissory note and said contract of guaranty, conveyed to said bank certain real property described in a declaration of trust, and that said bank accepted said declaration of trust. "Affiant states that said real property is still subject to the lien aforesaid, and the statement made by plaintiff in his affidavit for attachment that payment of the alleged contract on which suit was brought has not been secured, is erroneous." Attached to said affidavit was a copy of said declaration of trust, in which said bank certified and declared that it had received and accepted from the Valencia Groves Company, the trustor, deeds conveying to said trustee certain real property in the county of Los Angeles (describing two parcels of land, the first of which was subject to a mortgage of $90,000 and the second to a mortgage of $85,000), in trust for the following purposes: First, to secure the payment to the bank "of the debts evidenced by two notes, for $19,000 and $2,000, respectively," said note for $19,000 being the one herein sued upon. The contract of guaranty signed by Goldschmidt Bros. on the back of said note is also reproduced. The note for $2,000 bore date January 28, 1916, and was signed by Milton Kauffman and Isaac Kauffman, and contained a guaranty signed by Max Goldschmidt. Second, after the payment in full of the debts evidenced by said notes, to secure the payment of a certain note of the Valencia Groves Company to David S. Unruh for the sum of $2.155.12. Accompanying said affidavit was a "State- The single question presented hinges on ment to Clerk," directing that an attachment the real meaning and scope of the trust be levied upon certain real property in the deed. The appellants contend that the deccounty of Orange, describing it. On the 25th laration of trust was intended to secure payof June, 1917, another "Statement to Clerk" ment, not only of the promissory notes rewas delivered to the county clerk, directing ferred to in said declaration (one executed the attachment of the wholesale liquor es- by Milton Kauffman and the other by Milton tablishment of Goldschmidt Bros. in Los and Isaac Kauffman), but also the performAngeles; "also run a personal property gar-ance of the conditions of each of the guarnishment directed to the Title Insurance & anties indorsed on said notes, the one by Trust Company." Goldschmidt Bros. by Max Goldschmidt, and the other by Max Goldschmidt. The position of the appellants is that the provision in the declaration of trust, to wit, "To secure the payment to Hellman Commercial Trust & Savings Bank of the debts [italics ours] evidenced by two notes," etc., can reasonably be given no other con The return of the sheriff showed that he levied said writ of attachment on "all moneys, goods, credits, debts due or owing, or any other personal property belonging to the defendants, or either of them, in the possession of or under the control of Title Insurance & Trust Company," and that he (190 P.) tended to mean that the security afforded | such debt, but also to secure the performby the said declaration was to include and cover, not only the promissory notes, but the performance of the contracts of guaranty. With this view of the provision referred to we are unable to agree. ance of the contract of guaranty. This is true because the guaranty is itself security for the payment of the same debt. It is hardly supposable that in such case property would be hypothecated to secure a security already in existence to secure the debt to secure the payment of which such property is hypothecated. No such intent is clearly and unequivocally expressed in the instrument involved herein. The word "debts" we think it is clear, from a fair and reasonable construction of the declaration of trust, means, and was intended to mean, the debts created by the notes themselves, not only proper, but necessary, as a matter of description—that is, for the purpose of describing the notes to secure the payment of which the trust deed was given-to insert in the declaration of trust the contracts of guaranty. [1] A guaranty is a promise to answer for the debt, default or miscarriage of another person (Civ. Code, § 2787), and a person may become a guarantor even without the knowledge or consent of the principal (Civ. Code, § 2788). A guaranty is therefore an independent contract-that is, entirely inde pendent of any contract of debt the payment of which is thus assured, and it follows that an action on a guaranty such as the one and was not intended to refer to and include involved herein is upon an independent con- the obligations created by the guarantors tract of the guarantor with which the prin- by their contracts of guaranty. It is true cipal debtor has nothing to do. "The lia- the declaration of trust sets out therein, not bility of the guarantor depends entirely up- only the notes, but also the contracts of on the terms of his contract of guaranty, | guaranty, but the latter contracts were inand there is no privity, or mutuality, or dorsed on the back of the notes, and it was joint liability between the principal debtor and his guarantor.'" Cooke v. Mesmer, 164 Cal. 332, 340, 128 Pac. 917, 920. See, also, Adams v. Wallace, 119 Cal. 67, 51 Pac. 14; Kinsel v. Ballou, 151 Cal. 762, 91 Pac. 620. [2] A mortgage or a trust deed given to secure the performance of an obligation to pay money and a guaranty given for the some purpose are each intended, of course, to subserve the same purpose, and where both are given to secure one single obligation of that character, the one operates merely as additional security to the other. But the creditor may resort either to the one or the other to enforce the payment of the money to secure the payment of which both were given. In case of a contract of surety executed to secure the performance of the obligation which is also secured by a mortgage or other collateral security the law is different. In the latter case, the holder of the mortgage or other security would be compelled to apply to the payment of the debt the property of the debtor which had been mortgaged to secure the debt. Civ. Code, 2850; Adams v. Wallace, supra. Such, however, is not the case as to a guarantor, as we have shown. Our conclusion is that the motion to dissolve the attachment was properly denied, and the order denying said motion is accordingly affirmed. We concur: ELLISON, Presiding Judge pro tem; BURNETT, J. (47 Cal. App. 86) EDWARDS v. GUARANTY TRUST & SAV- (District Court of Appeal, Second District, Di- There was no valid gift where the donor's check, given to the payee as a gift, and presented to the drawee bank prior to drawer's death, was not accepted or paid before such death, although payment was rejected without any malicious or wrongful intent, for a reason later shown to be incorrect. Appeal from Superior Court, Los Angeles County; Fred H. Taft, Judge. [3, 4] In view of the character and effect of a contract of guaranty, as above indicated—that is, that it creates an obligation wholly independent of that of the debt which it is given to secure-there would have to be to that effect a clear and unequivocal intent expressed in a mortgage or a trust deed given to secure the payment of a large sum of money, where there has also been given a guaranty for the payment of the same debt, to justify a court in holding that the purpose of the mortgage or trust deed, given subsequently to the execution of the contract of guaranty, was to secure payment, not only of the promissory note evidencing | spondent. Action by W. S. Edwards against the Guaranty Trust & Savings Bank, as executor. From judgment for plaintiff, defendant appeals. Reversed. Vincent B. Vaughan and Lewis Cruickshank, both of Los Angeles, for appellant. F. A. Knight, of Long Beach, for re For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |