Kinney

This action is against Joseph Herspring & Co. and Joseph Herspring, individually, the complaint alleging that “Jos. Herspring is the sole owner of and the sole person interested in the firm known and designated as Jos. Herspring & Co.”

The action is upon an alleged guaranty for the payment of a promissory note executed by one H. A. French to the plaintiff. Said note was dated at Sacramento, July 12, 1917, and was payable “one day after date, without grace,” and provides that “in case suit is instituted to collect this note or any portion thereof” the maker would pay any additional sum as the court may adjudge reasonable as at torney’s fees in said suit. The note is set out in the complaint.

After stating that “the whole of said note is due, owing and unpaid,” the complaint proceeds:

■ A demurrer to the complaint upon both general and special grounds was overruled, and thereupon the defendant answered, interposing, after certain admissions and denials, a reply to plaintiff’s claim of guaranty, a digest of which may thus be given:

The answer sets up as a special defense that “there is no consideration” for the alleged contract of guaranty.

As may he implied from the foregoing,…