Opinion
Department Two
Hearing in Bank denied.
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.
COUNSEL:
Lloyd & Wood, for Appellants.
G. E. Harpham, for Respondent.
JUDGES: Myrick, J. Sharpstein, J., and Thornton, J., concurred.
OPINION
MYRICK, Judge
[5 P. 156] The defendant Levy, being indebted to a firm of stock brokers for moneys advanced by them in stock transactions, arranged with another firm of stock brokers, Eppstein & Co., that the latter firm should take up the stocks paying to the first firm the amount due it, and carry the stocks for him. In this arrangement the defendant Baldwin was to guarantee on behalf of Levy. The guarantee of Baldwin was in the following terms:
" San Francisco, March 10, 1879. -- M. Julius Levy, in account with Eppstein & Co., commission stock brokers, No. 304 Pine Street.
| 1879. | PURCHASE. | |
| March 10th, 1,250 | Belcher, 6 1/2 | $ 8,125 00 |
| March 10th, 250 | Mexican, 40 | 10,000 00 |
| Com | 45 30 | |
| E. and O. Ex. | $ 18,170 30 |
" I herewith guarantee the above account, to wit, eighteen thousand, one hundred and seventy, and thirty one-hundredths dollars ($ 18,170.30), in gold coin, against any loss for sixty days from date, and agree to make good any loss that may be sustained thereon in reselling the above stock; balance to be paid, with interest at one and one-fourth per cent. per month.
" E. J. Baldwin."
The term of the guarantee was extended from time to time until July 25, 1879, transactions of sale and purchase of other stocks having been had in the meantime by the consent of Baldwin; and on that day the stocks then in hand were sold by Eppstein & Co., they claiming a balance due them of $ 4,023.57.
Two questions arise in this appeal, viz: 1. During the time Eppstein & Co. were carrying the stocks, they paid assessments which had been levied thereon. Were they entitled to deduct the amounts so paid from the proceeds of the sales? 2. As to Baldwin, when did interest begin to run -- from the dates respectively of the payments made by Eppstein & Co., or from the time the balance was ascertained, viz, July 25, 1879, and at what rates? We are of opinion that Eppstein & Co. had the legal right to protect the security in their hands by the payment of the assessments. Otherwise, it might have been entirely lost by sale for assessments.
In [5 P. 157] guaranteeing the account, Baldwin in terms guaranteed interest at the rate of one and one-fourth per cent. per month, only on the balance to be ascertained. The balance was ascertained July 25, 1879; therefore, from that date only is interest to be computed at that rate. But, as under section 1917, Civil Code, on moneys lent, interest is payable at the rate of seven per cent. per annum, and as the transaction between Levy and his grantor on one side and Eppstein & Co. on the other was one of moneys lent, interest is payable thereon at the statutory rate.
Some other points were presented, but there are none which affect the substantial rights of the appellant.
The judgment and order as to Baldwin are reversed, and the cause is remanded, with instructions to render judgment in favor of plaintiff and against the defendant Baldwin on the following basis, viz: Credit the account sued on with the total amounts paid for stocks, assessments, and commissions, viz, $ 41,784.84; debit with the amounts received on sales, viz, $ 39,645; add to the credit side at the proper dates interest on the intermediate balances in favor of Eppstein & Co. at the rate of seven per cent. per annum to July 25, 1879; from that day the amount in favor of Eppstein & Co. will bear interest at the rate of one and one-fourth per cent. per month until date of judgment hereby ordered.