form, or else go out in the street. State ex rel. Ellis v. Mulligan (1913) 173 Mo. App. 718, 160 S. W. 9.

It will be seen that in the reported case (PEOPLE EX REL. MCCORMICK V. WESTERN COLD STORAGE Co. ante, 437) the platform was raised about 2 feet above the sidewalk, compelling pedestrians to climb steps at one end and to pass over an inclined plane at the oth

er.

Authority to grant permission to erect platforms along the sidewalk, and remove the curbing so as to load wagons from them, is not included in the grant of power to grant the right to use streets for bay windows, areaways, steps, or other such temporary or similar uses; and it is immaterial that the permit is made revocable at the discretion of the authorities. Brauer v. Baltimore Refrigerating & Heating Co. (1904) 99 Md. 367, 66 L.R.A. 403, 105 Am. St. Rep. 304, 58 Atl. 21.

A charter provision giving a city power to regulate the use of streets for any other purpose than public travel does not empower it to confer the right upon a railroad to erect a freight platform and roof, occupying exclusively 12 or more feet of a sidewalk. State, Traphagen, Prosecutor, v. Jersey City (N. J.) supra. The court stated that the result was to exclude public travel from the sidewalk and devote it to the private business of the railroad.

It may be noted that it has been held that city authorities have no power to give the owner of an ice house the right to use an ice chute across the street to his ice house, from the river where he takes the ice. Young v. Rothrock (1903) 121 Iowa, 588, 96 N. W. 1105.

In State ex rel. Ellis v. Mulligan (1913) 173 Mo. App. 718, 160 S. W. 9, supra, the court said: "It is urged that these loading docks are business necessities. That may be, but that should have been thought of and provided for when the building was erected, by so locating it as to have the docks on defendant's property instead

of attempting to use the public sidewalk. Something is also said about the character of the neighborhood not now being as desirable as it once was, being given over to wholesale and manufacturing houses, interspersed with saloons, foreign grocery stores, and other less respectable places. Because relator's property is located in a neighborhood that is becoming undesirable is no reason why defendants should be permitted to make it still less valuable. Removing this outrageous obstruction from the sidewalk will be at least one step toward rehabilitation of the locality."

In Flynn v. Taylor (1891) 127 N. Y. 596, 14 L.R.A. 556, 28 N. E. 418, it was held that the occupation of a sidewalk by a permanent loading platform with the consent of the city authorities was a nuisance.

But in Murphy v. Leggett (1900) 164 N. Y. 121, 58 N. E. 42, 8 Am. Neg. Rep. 292, it was held that a platform within the "stoop limit" was not a nui

sance.

It may be noted that in Bagley v. People (1880) 43 Mich. 355, 38 Am. Rep. 192, 5 N. W. 415, it was held that an alley was not a public highway, and that a platform thereon could not be assumed to be a nuisance.

In Stratton & T. Co. v. Meriwether (1912) 150 Ky. 363, 150 S. W. 381, where the defendant, on the complaint of its neighbor, was ordered to remove permanent loading platforms in the street, it was not claimed that the authority from the city, under which the platforms were erected by the defendant, relieved it from liability for damage, but it was unsuccessfully urged that the plaintiff, having brought his suit for an injunction after the platforms were erected, ought to be limited to relief in damages.

It may be said that in John A. Tolman & Co. v. Chicago (1909) 240 Ill. 268, 24 L.R.A. (N.S.) 97, 88 N. E. 488, 16 Ann. Cas. 142, referred to in the reported case (PEOPLE EX REL. MCCORMICK V. WESTERN COLD STORAGE Co.), the question was as to the use of skids. It was conceded by the owner that on

the showing made on the record the platform was unlawful, and it did not claim any right to maintain it. For power of city to permit abutting

owners to use street including sidewalk for the deposit, exhibition, or sale of goods, see the annotation in 6 A.L.R. 1317. B. B. B.

V.

Cal.

Parties

action on open account

190 Pac. 793.)

Bills and notes giving note as satisfaction of debt.

2. Giving of a note for a debt represented by an open account does not extinguish the debt, but if the note is not paid an action can be maintained upon the original indebtedness. [See 1 R. C. L. 206.]

Guaranty

who may recover upon.

3. One who has parted with his claim against a corporation cannot recover against a stockholder of the corporation, either upon his guaranty of the debt or upon his liability as a stockholder.

[See 12 R. C. L. 1055, 1056.]

Messrs. Rothchild, Golden, & Rothchild and J. A. Pritchard, for respondents:

Parties severally liable upon the same obligation or instrument, and sureties on the same or separate instruments, may all, or any of them, be included in the same action, at the option of the plaintiff.

Hurlbutt v. N. W. Spaulding Saw Co. 93 Cal. 55, 28 Pac. 795; Kreling v. Kreling, 118 Cal. 413, 50 Pac. 546; Melander v. Western Nat. Bank, 21 Cal. App. 462, 132 Pac. 265.

Where several parties who united in a promise receive some benefit from the consideration, their promise is presumed to be joint and several.

Gummer v. Mairs, 140 Cal. 535, 74 Pac. 26; Shelton v. Michael, 31 Cal.

of the court.

App. 328, 160 Pac. 578; Leonard v. Leonard, 138 Cal. XIX., 70 Pac. 1071; Merchants' Trust Co. v. Bentel, 10 Cal. App. 75, 101 Pac. 31; Doyle v. Nesting, 37 Colo. 522, 88 Pac. 862.

The express consideration of $1 is sufficient to support a guaranty.

Davis v. Wells, F. & Co. 104 U. S. 167, 168, 26 L. ed. 690.

A judgment shall be a final and complete determination of the rights of the parties.

Hentig v. Johnson, 8 Cal. App. 221, 96 Pac. 390; McGarrahan v. Maxwell, 28 Cal. 75; Dennison v. Chapman, 105 Cal. 447, 39 Pac. 61; Bedolla v. Williams, 15 Cal. App. 738, 115 Pac. 747; Bliss, Pl. § 167, p. 279; Wolfe v. Wilsey; 2 Ind. App. 549, 28 N. E. 1009; Libby v. Rosekrans, 55 Barb. 202; Turner v. Plowden, 5 Gill & J. 52, 23 Am. Dec. 596; Davidson v. Brown, 1 Cranch, C. C. 250, Fed. Cas. No. 3,601.

58 Pac. 154; Elizalde v. Murphy, 146 Cal. 168, 79 Pac. 966.

A stockholder's liability is founded upon contract.

Kennedy v. California Sav. Bank, 97 Cal. 93, 33 Am. St. Rep. 163, 31 Pac. 846.

And may be waived or modified by contract.

Wells v. Black, 117 Cal. 160, 37 L.R.A. 619, 59 Am. St. Rep. 162, 48 Pac. 1090; Kohn v. Sacramento Electric, Gas & R. Co. 168 Cal. 7, 141 Pac. 626.

A guaranty covering a certain transaction cannot be made to cover other transactions, or persons, than those designated in the guaranty.

Evansville Nat. Bank v. Kaufmann, 93 N. Y. 273, 45 Am. Rep. 204; Edmondston v. Drake, 5 Pet. 622, 8 L. ed. 251; Mason v. Standard Distilling & Distributing Co. 85 App. Div. 520, 83 N. Y. Supp. 343; First State Bank v. Boetcher, 154 Wis. 444, 143 N. W. 172.

No one can take advantage of a guaranty but the person to whom it runs, or his assignee.

Postlethwaite v. Minor, 168 Cal. 227, 142 Pac. 55.

Liability cannot be extended by any contract which a corporation may make after the incurring of a debt. His liability is on the original debt, and any attempt to extend this debt in no wise affects his liability.

Goodall v. Jack, 127 Cal. 258, 59 Pac. 575; Santa Rosa Nat. Bank v. Barnett, 125 Cal. 407, 58 Pac. 85; Winona Wagon Co. v. Bull, 108 Cal. 1, 40 Pac. 1077; Clark v. Berlin Realty Co. 33 Cal. App. 50, 164 Pac. 333.

Defenses based upon releases, discharges, and exoneration must be spe

cially pleaded. If not so pleaded,

they are waived and cannot be taken advantage of.

San Pedro Lumber Co. v. Reynolds, 121 Cal. 78, 53 Pac. 410; Coles v. Soulsby, 21 Cal. 50; McGinn v. Willey, 24 Cal. App. 303, 141 Pac. 49; Bishop v. Hart, 114 Iowa, 96, 86 N. W. 218; Sentinel Co. v. Smith, 143 Wis. 377, 127 N. W. 943; National Radiator Co. v. Hull, 79 App. Div. 109, 79 N. Y. Supp. 519.

Olney, J., delivered the opinion of the court:

This is an appeal by the defendant from a money judgment against him. The following facts appear without dispute: The defendant

and two men by the name of Pike were stockholders and officers of a corporation known as the Pike Woolen Company, and the defendant and one of the Pikes executed to the plaintiffs a joint guaranty of any indebtedness that the Woolen Company might incur to them. The Woolen Company did incur such an indebtedness in the sum of $4,436.81. Thereafter the Woolen Company became embarrassed financially, and, for the purpose of arranging its indebtedness, executed two notes, one for $6,000 and one for $7,000 in favor of a representative of its creditors, including the plaintiffs. These notes representea the aggregate of the debts due the creditors, including the debt to the plaintiffs. The note for $6,000 was signed by the defendant's coguarantor, Pike, and his wife, as well as by the company, and, as security for its payment, Pike and his wife also executed a deed of trust of certain property of their own. The court finds, and we may assume that the finding is justified by the evidence, that the defendant consented to the plaintiffs taking these notes. Payments were made on the notes from time to time, but finally the Woolen Company defaulted upon them, and the payee of the notes, the representative of the creditors, threatened to sell the property of the Pikes covered by the trust deed. Thereupon the Pikes, or one or the other of them, arranged with the payee of the notes for their purchase or return upon the payment of $5,000.

The defendant claims that the arrangement was for the purchase of the notes, and the plaintiffs claim that it was for the return of the notes to the Woolen Company. But, whatever may have been the negotiation between the Pikes and the payee, the thing that was finally done was that, in consideration of $5,000 paid him, the payee of the notes indorsed them to one of the Pikes. The uncontradicted testimony also is that the notes remained outstanding as obligations of the Woolen Company, and that the

$5,000 which was paid for the notes was obtained by Pike from a third person by a second hypothecation of his property. The $5,000 was distributed by the payee of the notes among the creditors whom he represented, in proportion to their claims. Including their share of this, the plaintiffs received on account of their claim against the Woolen Company a total of $2,174.03, leaving a balance of $2,262.78, on which they received nothing.

Under these circumstances the plaintiffs brought the present action against the defendant; the complaint containing two counts, one on the joint guaranty of the defendant and Pike for the recovery of the unpaid balance mentioned, and the other on the defendant's liability for his proportion of that balance as a stockholder of the Woolen Company. The answer of the defendant pleaded payment of the obligation of the Woolen Company to the plaintiffs, and also set out as a separate defense the facts stated above with reference to the giving of the two notes and their subsequent transfer to Pike. The trial court found that the original indebtedness of the Woolen Company to the plaintiffs had not been paid, and also, in effect, that the facts alleged as a separate defense were not true. This latter finding must have been an inadvertence, for the facts stated appear without conflict, and for the most part in the testimony for the plaintiffs, as well as in that for the defendant. This finding must therefore be considered as not sustained by the evidence. The trial court concluded that the plaintiffs were entitled to recover on both counts, and gave judgment to that effect.

It would seem to be quite evident that the plaintiffs cannot recover against the defendant as the guarantor of a debt of the Woolen Company, or as a stockholder of the company proportionately liable for its debt, if the plaintiffs had, before the commencement of their their action, parted with the debt which is the basis of the action. The real ques

tion in the case is: Had they so parted?

No question is made but that the original debt of the Woolen Company to the plaintiffs was covered into the two notes given the representative of the creditors. There is

question made as to whether the two notes were taken in payment. The question, however, would seem to be one largely as to the use of terms, since the fact is clear that the notes. were simply taken in ordinary course for what had previously been open accounts. It is well established that in such a case Bills and notes— the indebtedness for giving note as which the notes are satisfaction of taken is not paid in

debt.

the sense that it is absolutely discharged. If default be made upon the notes, an action can be maintained upon the original indebted-ness, as if the notes had never been given.

But, on the other hand, the notes evidence the debt, and if they are transferred the debt is transferred with them, and the original creditor can thereafter maintain no action upon it. It no long

on open account

representative

er belongs to him. Parties—action That the original transfer of debt for which a note. note has been taken passes with the transfer of the note was directly decided in Goldman v.. Murray, 164 Cal. 419, 129 Pac. 462. There the plaintiff brought an action to recover from the defendant, as a stockholder of a certain corporation, his proportion of a certain indebtedness of the corporation. It appeared that the corporation had been originally indebted for money advanced to it, and gave its note to its creditor for the amount. The creditor then transferred the note to the plaintiff. The trial court found the note to be invalid as against the corporation, because of want of authority for its execution, but found that the original indebtedness of the corporation had been assigned by the original creditor to the plaintiff, and granted a recovery upon it. On appeal, this finding of an assignment was at