Shafer

This is one of three cases, growing out of the same transaction, which, for the purpose of consideration on appeal, were consolidated. The other cases are numbered, respectively, 2438 and 2439. All three were submitted upon the same record. There are, however, certain questions presented in this case which do not arise in the others.

The appeal here is by Lindsay National Bank from the judgment, upon the judgment-roll alone.

The general facts of the transaction out of which the several cases arise are stated in an opinion filed in this court this day (ante, p. 580 [ 208 Pac. 192 ]), entitled “Maryland Casualty Company, a Corporation, Plaintiff and Respondent, v. M. T. Shafer et al., Defendants and Respondents, O. M., C. M. and E. O. Thompson, Copartners, Doing Business Under the Firm Name and Style of Thompson Bros., Defendants, Gross-Complainants and Appellants.” It is conceived, however, that reference to those facts should be made herein.

The plaintiff was surety of the defendant, Shafer, on a contract between the latter and the county of Tulare, whereby Shafer agreed to build the Lindsay-Tulare division of a system of public highways in said county for a certain specified…