The plaintiff commenced an action against the defendants to recover a judgment for the reasonable value of building materials. The action was brought against the corporate defendant as the principal debtor and against the other defendants on their stockholders’ liability. The action was tried in the lower court before the court sitting without a jury; that court made findings in favor of the plaintiff and caused its judgment to be entered in accordance with those findings. The defendants have appealed.

The claim of the plaintiff was evidenced by seven different writings. In drawing its complaint the plaintiff alleged:

Later the trial court made a finding that all of the allegations contained in those paragraphs are true and each of said allegations is true. The papers referred to in the complaint were attached to it and are as follows:

Except as to the date and the amount, each of the other seven instruments was in the same form as the one last quoted.

It will be noted that the language of the complaint which alleges that the defendant corporation “guaranteed the payment” can be dropped and that the pleading will still be sufficient. Furthermore, the finding of the court was such that if all reference to said papers “as guarantees” should be eliminated the findings will still be in favor of the plaintiff and against the defendant, and will be sufficient to support the judgment.

On this appeal the appellant in the last analysis makes but one point and that is that each of said written instruments purports to be a guarantee and that the defendant corporation had no power to guarantee the written obligations of any person and therefore the writings were ultra vires and void. The vice in this reasoning is that there is nothing whatever on the face of said writings indicating that said writings were guarantees excepting only the first two writings.

We turn then to the passages in the record which tend to throw light on the question as to whether either of the first two papers was intended as a guarantee. Mr. Schliem was a contractor doing business in the neighborhood of Riverside. On the 11th of March, 1919, he had an account with the defendant Bank and was owing the Bank various sums of money. At the same time the Bank held the title to numerous pieces of property as security for the moneys owing to it by Mr. Schliem. Mr. Schliem had at that time several ineompleted building contracts. The Bank held written authority authorizing it to collect such sums as would become due as the various contracts were completed. On March 11, 1919, Mr. Schliem needed building materials to complete some of those contracts. He called on the plaintiff and had a conversation with Mr. Kennedy, the representative of the plaintiff. Mr. Kennedy testified: “Mr. Schliem came in the office one day and wanted we should, furnish him some lumber; and I told him we would not agree to furnish lumber to him—we would not furnish lumber to him until we knew where we would get the money. He asked us if we would furnish the lumber if the bank would pay for it. I told him certainly we would. So he went down to the bank and a few minutes after Mr. J. C. Odell called up on the phone and said that Mr. Schliem had been speaking to him in regard to lumber, and wanted to know if we would furnish it. I told him we would if the bank would be good for it. So then Mr. Schliem came back in an automobile and got me and took me down to the bank and I talked to Mr. J. C. Odell, and he asked if I would furnish lumber to Mr. Schliem. I told him no I would not furnish it to Mr. Schliem, but I would furnish it to the bank. The conversation was that if we would furnish the lumber to Mr. Schliem the bank would be responsible for it and pay for it. It was understood there was to be a written order given but Mr. Odell did not want to give a written order at that time. He wanted me to come back again in the morning. He turned to Mr. Schliem and asked him if he had to have any lumber right away; and Mr. Schliem said he would have to have some that afternoon. Mr. Odell stated definitely that the bank would take care of the account and would give us an order. When I went in in the morning to get the order he presented the order to me and instructed me to furnish lumber to Mr. Schliem.” The next morning Kennedy went to the Bank for his order; one was presented signed by Odell, Kennedy refused to accept it, and thereupon Odell asked him to prepare the paper in such form as he wanted it. Thereupon Kennedy prepared the paper which appears above and which is dated March 11, 1919, and, on presentation, Mr. Odell signed in the form in which we have copied the instrument. Each of the other papers was prepared by the plaintiff and was presented to the Bank for signature.

Mr. Odell was called as a witness and gave no testimony contradicting Mr. Kennedy as we have quoted him above, Mr. Schliem was called as a witness and testified that he did not remember the facts. Running through the entire transcript as the case was tried in the lower- court the papers above set forth were referred to by the witnesses as orders and counsel for the plaintiff: and counsel for the defendants used the same language. After each one of these papers had been signed and delivered the plaintiff delivered building materials on such job and in such quantity as Mr. Schliem directed and at the same time delivered to the bank invoices in form as follows:

Numerous similar invoices are copied into the record and our attention is not called to any passage contained in the record wherein anybody contended that the real debtor was not the defendant Bank, but should have been A. Schliem and that the invoices were improperly written.

There is testimony in the record that Mr. J. C. Odell had the management and supervision of the commercial department, the savings department, and the trust department, although it further appears that there was another individual specially in charge of each of those desks. Under these circumstances we think it is quite clear that the writings above set forth were not intended as anything but orders and that they were orders issued by the manager of the defendant corporation. Furthermore, from the facts which we have recited it appears that the president of the Bank was attempting to save the Bank from incurring a loss and that it does not necessarily appear that his acts were ultra vires. (Stewart v. Stewart Hotel Co., 33 Cal. App. 167 [ 164 Pac. 620 ] ; Dunne v. Independent Order of Foresters, 185 Cal. 211, 216 [18 A. L. R. 639, 196 Pac. 41 ].)

But if we assume for the purposes of this opinion, and for those purposes only, that the acts of the Bank were ultra vires, still the defendant shows no defense. It is not disputed but what the plaintiff’s property was delivered to, and on, the defendant’s orders and was used to swell the assets of the defendant. In its complaint the plaintiff alleged and sought to recover the reasonable value of its materials so furnished to and used by the defendant. Under these circumstances the respondent was clearly entitled to recover. (Pauly v. Pauly, 107 Cal. 8, 18 [ 48 Am. St. Rep. 98 , 40 Pac. 29 ]; Pullman Palace-Car Co. v. Central Transp. Co., 65 Fed. 158, 162 .)

The judgment is affirmed.

Nourse, J., and Langdon, P. J., concurred.

A petition by appellants to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 5, 1926.