ceeds of said sale were the sum of $45,112.35, which sum said plaintiff credited on the note set forth in plaintiff's complaint herein.

Upon the filing of the complaint, the defendants Bousfield, Ver Mehr, and Dodge filed their answers denying any liability under the guarantee, and alleging that there was no consideration for the same. The cross-complaint admitted the execution of the instrument of the fifteenth day of December, 1914, waiving provisions of the guarantee, limiting their liability thereunder to twenty-five thousand dollars, but alleging that the defendants never agreed that said guarantee should be an unrestricted guarantee of the full payment of the note, but that said waiver only guaranteed the deficiency, if any, up to one hundred and fifty thousand dollars, which should remain to satisfy the balance of the purchase price of the real property, which was the subject of the agreement of sale, after the same had been sold, and the proceeds divided according to that contract. By way of cross-complaint, which defendants Bousfield subsequently filed, it was alleged that the instrument of December 15, 1914, by which defendants Bousfield, Dodge, and Ver Mehr jointly and severally guaranteed the full payment of the note for one hundred and fifty thousand dollars, waiving presentment, and unqualifiedly waiving the twentyfive thousand dollar limitation upon the liability of the parties (already referred to) was intended to mean, and its legal consequences were intended to be, that said defendants waived the limitation of twenty-five thousand dollars, contained in the guarantee for said note, and that they were to be liable for the deficiency, if any, up to one hundred and fifty thousand dollars, which should remain of the said purchase price after the real property, described in the agreement of sale, had been sold, and the proceeds applied according to the terms thereof, but through the mutual mistake of the defendants and the plaintiff, and the Brook-Wood Acres, corporation, said instrument failed to express that intention in so many words, and prayed that the instrument be reformed accordingly.

The court found in favor of plaintiff and against the defendants on all points, and, after crediting the net proceeds of the sale of the property made by the substituted trustee, the Berkeley Bank of Savings and Trust Company,

of $45,112.35, gave judgment against defendants Mills in the sum of twenty-five thousand dollars, and against defendants Bousfield, Ver Mehr, and Dodge in the sum of $58,554.36, together with the sum of five thousand dollars attorneys' fees.

Appellants contend that the main agreement, the contract of February 21, 1913, was not a contract of purchase and sale of real property, and that the note for one hundred and fifty thousand dollars was not a note for the purchase price of the land, but that in reality it was executed and deposited with the trustees as a penalty; that the recital in the preamble of the contract "that the said first party (plaintiff) has sold to the said second party (Brook-Wood Acres Company, Inc.), and the said second party has bought from the said first party, all upon the terms and conditions, and in the manner hereinafter set forth, and purchase price thereof to be payable as hereinafter set forth, that certain real property, etc.," is palpably untrue. This contention cannot be supported by a logical analysis of the note, the deed and the agreement, when read together. In view of the plain and unambiguous statement in the agreement, we are satisfied, as a matter of fact, that the note represented the purchase price paid for BrookWood Acres.

We prefer to accept the view of respondent that the parties to the contract intended to be and were bound by its recitals. (Code Civ. Proc., sec. 1962, subd. 2.) From all the surrounding circumstances attending the transaction, we are led to conclude that no other contract relative to the sale of the land was contemplated, and that the note for the one hundred and fifty thousand dollars was executed by the corporation and delivered to the trustees, as the evidence of, and for the purchase price of, the tract. The main agreement of February 21, 1913, in paragraph 29 thereof, refers to the note "for the principal sum of one hundred and fifty thousand dollars ($150,000.00), representing the purchase price to be paid for said BrookWood Acres; the payment of which note has been guaranteed, jointly and severally by" the defendants. Concurrently with the execution of the ratification agreement of December 15, 1914, and as part of the same transaction, the appellants, and the other guarantors, consented to and

requested the execution of the said ratification agreement which by its terms specifically refers to and deals with the note for the one hundred and fifty thousand dollars. Appellants, by their own acts, therefore, are estopped from claiming the note to be a penalty, and not evidence of the purchase price for the land. The note is a demand note. Appellant contends that as there is no allegation in the complaint that a previous demand was made on the maker of the note, or that suit had been instituted against it (which would have taken the place of a formal demand), and as there was no proof in support of any such demand or suit, the maker of the note never became liable, and the action against the guarantors was premature.

[7] A guaranty is a promise to answer for the debt of another person, and it may be enforced, upon default of the principal, without any previous demand or notice. By its various transitions the contract of guaranty in this case became an absolute undertaking to pay the whole debt of Brook-Wood Acres, Inc., if the company did not, and no mere delay of plaintiff to proceed against the maker of the note, or to enforce any other remedy, can be availed of by the guarantors as a defense. (First Nat. Bank v. Babcock, 94 Cal. 96, 104, [28 Am. St. Rep. 94, 29 Pac. 415]; Carver v. Steele, 116 Cal. 116, [58 Am. St. Rep. 156, 47 Pac. 1007].) This is not an action for the collection of the Brook-Wood Acres, Inc., debt as such. It is an action upon an independent contract of the defendants. There is no privity, or mutuality, or joint liability between the principal debtor and its guarantors. (Adams v. Wallace, 119 Cal. 67, 71, [51 Pac. 14].) Moreover, the defendants, including appellants, made an independent contract upon which they became liable without regard to the sale of the property, under the terms of the trust, as against the principal debtor. (Kinsel v. Ballou, 151 Cal. 754, 762, [91 Pac. 620]; Adams v. Wallace, supra.)

[8] This case presents no different aspect from the foregoing, and numerous other cases, decided by the courts of last resort of this state, in which it has been held that regardless of the necessity for exhausting the security given, before resorting to the personal liability of the maker of a note, nevertheless an indorser or guarantor may be sued

upon his personal liability before and without such action. having been taken.

[9] It was proper for the court to allow the attorney fee included in the judgment.

The judgment is affirmed.

Richards, J., and Kerrigan, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 18, 1919.

All the Justices concurred.

[Civ. No. 2878. First Appellate District, Division Two.-July 21, 1919.] ROSINA EXPOSITA, Appellant, v. v. UNITED RAILROADS OF SAN FRANCISCO (a Corporation), Respondent.

[1] EVIDENCE

COMPETENCY OF CHILD UNDER TEN-DISCRETION OF TRIAL COURT.-The competency of a child under the age of ten years to testify is a matter which is left largely to the discretion of the court.

[2] ID.

SUGGESTION BY COURT THAT CHILD BE WITHDRAWN-FAILURE TO OBJECT-PRESUMPTION.-Where the trial court suggests that a child under the age of ten years should be withdrawn as a witness because she is too young, and no objection is interposed by the party offering such witness to the action of the trial court, the witness being withdrawn, acquiescence will be presumed.

[3] NEGLIGENCE - -ACTION FOR DAMAGES INJURY WHILE ALIGHTING FROM STREET-CAR-NONOCCURRENCE OF ACCIDENT-EVIDENCE.-In an action for damages for personal injuries alleged to have been sustained by plaintiff while attempting to alight from a street-car of the defendant company, testimony of the crews of the various cars which were scheduled to pass over the line on which the plaintiff claims to have been traveling prior to and immediately following the time of day when the plaintiff claims the accident occurred, that no accident such as described by the plaintiff occurred upon the cars which they were operating, is admissible to establish the

1. Competency of child as witness, notes, 124 Am. St. Rep. 296; 14 Ann. Cas. 3; Ann. Cas. 1916C, 424; 19 L. R. A. 65.

defense that the accident never in fact occurred at all, notwithstanding the crew of one car upon which the accident could have occurred is not produced. The negative character of such evidence only affects its weight and sufficiency.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. John Hunt, Judge. Affirmed.

The facts are stated in the opinion of the court.

Ambrose Gherini and Edwin H. Williams for Appellent.

Wm. M. Abbott, Wm. M. Cannon and Kingsley Cannon for Respondent.

LANGDON, P. J.-This is an appeal by the plaintiff from a judgment rendered against her upon a verdict of a jury. The action was one for damages for personal injuries claimed to have been sustained by plaintiff while attempting to alight from one of defendant's street-cars at Fifteenth and Church Streets, in San Francisco. The complaint alleged that while the plaintiff was attempting to alight from the defendant's car, the car started and threw her to the ground, causing serious internal injury.

The appellant argues two questions upon the appeal. The first contention is that the court erred in refusing to permit a nine year old child to testify for plaintiff on the ground that she was too young, without any examination of the proffered witness. The plaintiff testified as to the occurrence of the alleged accident, and her testimony was corroborated by that of Primo Mileti, alleged to have been with her at the time. She also offered the testimony of her nine year old daughter, who, it is asserted by her, was present at the time of the accident and witnessed it. The preliminary questions by the court disclosed the fact that at the time of the accident the child was eight years and four months old; that she was nine years old on the ninth day of August, 1916, and the trial took place about a month later. The trial judge stated that from the appearance of the child he would think that she was between seven and eight years old at the time of the trial, and that she was too young at the time of the alleged accident to be permitted to testify in regard to the occurrence.

42 Cal. App.-21