the laws of the state of Missouri, and during all of said times was, and it now is, engaged in the banking business at Aurora, Missouri, and that at all said times Roley & Co. was, and it now is, a copartnership engaged in running and operating a zinc mine at Aurora, Missouri. 2. That on January 6, 1906, the defendant herein, Peter W. Stewart, by his written order of that date, duly executed by him and delivered to the plaintiff, which said order is lost, and can not be filed herewith for that reason, ordered and requested the plaintiff to advance to the said partnership of Roley & Co. such sum as was needed to meet the paper of the said partnership down to and includ-. ing that date. 3. That on the said last-mentioned date the plaintiff accepted the said order of the defendant, and advanced to the said Roley & Co., on the said order and request of said defendant, the sum then due by the said partnership on account of its paper, which plaintiff alleges was the sum of $300; and plaintiff further states that it then paid said sum upon said order of the defendant on account of the said paper of the said partnership of the said Roley & Co. 4. Plaintiff further states that the defendant herein, Peter W. Stewart, had notice of the acceptance by the said plaintiff of the written order aforesaid, and of the fact that the plaintiff had paid the sum aforesaid on account of the paper of the said partnership as aforesaid. 5. Plaintiff further states that no part of the said sum so paid by it on the order in writing aforesaid, signed and delivered to it as aforesaid by the defendant, has been paid to it by the said defendant or by the said partnership, but the whole thereof remains due and unpaid, although the same has been demanded of the defendant and from the said partnership. Wherefore, the plaintiff demands judgment against the defendant for the said sum of $300, with interest thereon from January 6, 1906, at the rate of six per cent per annum [etc.]. McPherson & Hilpert, For the California statute enumerating the various classes of promises to answer for the obligation of another deemed original obligations of the promisor, and therefore not required to be in writing, see Civ. Code, § 2794. Form No. 804 may be used in an action where the order upon which moneys directed to be paid is not lost, by omitting the allegation therein to that effect, resting upon the averments as to the making of the order, its acceptance, etc. FORM No. 805—Against guarantors of a promissory note. (In Merchants' Trust Co. v. Bentel, 10 Cal. App. 75; 101 Pac. 31.) [Title of court and cause.] The plaintiff complains of the defendants, and for cause of action alleges: 1. That the plaintiff is, and for more than one year last past has been, a banking corporation duly created, organized, and existing under the laws of the state of California, and having its principal place of business at the city of Los Angeles, in said state. 2. That on the 10th day of April, 1907, plaintiff, at the said city of Los Angeles, state of California, loaned to The Hecla Consolidated Mines Company, a corporation, and said The Hecla Consolidated Mines Company borrowed and received of the plaintiff, the sum of $3,000, in gold coin of the United States of America, which said sum the said Hecla Consolidated Mines Company agreed to repay to the plaintiff herein, at its banking-house in the said city of Los Angeles, on the 10th day of October, 1907, with interest thereon from April 10, 1907, until paid, at the rate of seven per cent per annum, payable monthly, and if not so paid the interest should become a part of the principal, and thereafter bear like interest as the principal; and it was also agreed that in case suit be brought to compel payment of said note it would pay an additional sum of ten per cent on the unpaid principal and interest as attorney's fees, and would also pay costs of suit, and that the principal and interest should be paid in gold coin of the United States; that to evidence said loan and the terms thereof, and for the aforesaid consideration and loan, the said Hecla Consolidated Mines Company thereupon, and on the said 10th day of April, 1907, made, executed, and delivered to the plaintiff herein its certain promissory note, in words and figures following, to wit: "Los Angeles, Cal., April 10, 1907. No. 1382. Six months after date, for value received, we promise to pay to the Merchants' Trust Company, or order, at its banking-house in Los Angeles, three thousand dollars ($3,000) with interest from date until paid, at the rate of seven (7) per cent per annum, payable monthly, and if not so paid the interest shall become a part of the principal and thereafter bear like interest as the principal. In case suit be brought to compel payment of this note, we agree to pay an additional sum of ten per cent on the unpaid principal and interest as attorneys' fees and costs of suit. Principal and interest payable in gold coin of the United States. The Hecla Consolidated Mines Company. Edwin M. Hills, Pres. Wm. S. Vawter, Secy. [Corporation seal.]" 3. That at the time of the making, execution, and delivery of the aforesaid promissory note, to wit, the said 10th day of April, 1907, and as a part of the same transaction, and as the consideration and inducement upon which and for which the plaintiff herein made the said loan, and in consideration of said loan so made, the defendants, together with other persons, to wit, John R. Bragdon, William S. Vawter, T. H. Dudley, C. C. Bragdon, and Edwin M. Hills, made, subscribed, and caused to be endorsed and delivered upon the back of the said promissory note their written instrument of guaranty in words as follows: "We hereby jointly and severally guarantee payment of the within note, or any renewal or extension thereof, and all expenses of collection thereof, and waive demand, presentment for payment, protest, and notice of protest, and consent that the time for payment may be extended without notice to [here follow signatures of all said persons including the guarantors]." 4. That prior to the commencement of this action there had been paid upon the principal sum of said promissory note the sum of $1,500, and all interest accrued thereon to November 10, 1907; and that there now remains due, owing, payable, and unpaid upon said promissory note a balance of the principal sum of $1,500, together with interest upon said balance from November 10, 1907, at the rate of seven per cent per annum, payable monthly. 5. That prior to the commencement of this action plaintiff demanded payment of said The Hecla Consolidated Mines Company of the balance due and unpaid on said promissory note, and that said The Hecla Consolidated Mines Company has not paid said balance, or any part thereof, or any interest thereon, nor have the above-named defendants, or either or any of them, paid the said balance of principal and interest upon said note, or any part or portion thereof, but the whole of said balance of $1,500, and interest thereon as in said note provided, from November 10, 1907, remains and is now due, owing, payable, and unpaid to the plaintiff herein. 6. That the sum of $150 is a reasonable sum to be allowed to the plaintiff herein for the services of its attorney in this action, as in said note provided. Wherefore, plaintiff prays judgment against said defendants for the sum of $1,500, and interest thereon from November 10, 1907, until entry of judgment, all in gold coin of the United States of America, and for the further sum of $150 as its attorneys' fees, and for costs of suit. Patton & Sage, Attorneys for plaintiff. [Verification.] §348. ANSWERS. FORM No. 806-Defense that guarantor had no notice of non-payment of note until after insolvency of maker. (In Withers v. Berry, 25 Kan. 373.) [Title of court and cause, etc.] The defendant, for answer to plaintiff's petition, denies each and every material allegation therein contained, except such as may be hereinafter admitted. Defendant, further answering said petition, says that prior to the time when said note in the petition mentioned became due and payable, he sold and delivered the note to plaintiff and signed the same as guarantor; that said note became due and payable on the day of 19 ; that but one of the original parties to said note was solvent at the time it became due and payable, and that plaintiff well knew that one was the only one of the original makers of the note who was solvent at the time of said sale and transfer by defendant to plaintiff; that plaintiff did not give defendant any notice of the non-payment of said note until in the month of 19 ; that at that time the said had left the state of and had become and was insolvent, and all of the original makers of the note were at that time insolvent; that if plaintiff had used due diligence in suing upon said note, or had given notice to defendant of the non-payment of the note prior to the time said left the state and became insolvent, he, the defendant, could have saved himself from loss of the payment of the note mentioned; but that, by reason of said neglect to sue or give notice to defendant before the said left the state and became insolvent, the defendant is unable to save himself from the loss of said sum in the note mentioned. Defendant, further answering, says that by reason of said want of demand and due notice of defendant, the plaintiff ought not to recover of him, the defendant. Wherefore, defendant prays that said cause may be dismissed as to him, and that he may recover his costs herein expended. [Signature, etc.] FORM No. 807-Defense that sureties signed notes without consideration, and at the instance of the plaintiff only. (In Barnes v. Van Keuren, 31 Neb. 165; 47 N. W. 848.) [Title of court and cause.] Defendants deny every allegation of the petition not herein expressly admitted, and admit the signing of the notes in the petition mentioned; but they aver that they signed said notes as sureties for the defendant and without any consideration therefor, at the special instance and request of the plaintiff. That the principal maker of the notes never requested the defendants to sign the same, but that the same was done for the plaintiff's accommodation after the delivery of the notes by the principal maker thereof. [Etc.] Form of answer in an action on an indemnity contract: Rogers v. Kimball, 121 Cal. 247, 53 Pac. 648. Forms of petition and reply in an action against defendant as guarantor of a contract of lease entered into between plaintiff and a third person: Walser v. Wear, 141 Mo. 443, 446, 42 S. W. 928. Form No. 808. For foreclosure of chattel mortgage. (Common form.). 1410 Form No. 809. To foreclose chattel mortgage for default in 1411 Form No. 810. For foreclosure of pledge.... 1413 Form No. 811. To recover for loss of pledge. 1413 Form No. 812. To recover for injury to pledge... Form No. 814. For an accounting concerning pledged goods, 1414 |