Pierce

This is an appeal of defendant Merrill from an order denying his motion for a new trial.

Defendants Boucbrake and Howes appealed from the judgment as well as from an order denying a new trial, which appeal was determined in S. F. Ho. 1351, ante, p. 464. In the opinion therein a copy of the guaranty hereinafter referred to is set out.

The action was commenced, as the complaint .shows, on the thirty-first day of January, 1896, to recover on a written guaranty of the payment of a loan of fifty thousand dollars and interest thereon, at the times and according to the terms of a note and mortgage given by the Semi-Tropic Land and Water Company. The note and mortgage referred to in the guaranty provided for the payment of the entire amount mentioned, with interest, on or before June 1, 1891. The defendant and appellant herein, Merrill, made a separate answer to the complaint, in which he pleaded the statute of limitations, section 337 of the Code of Civil Procedure. A trial was had without a jury, and the court, among other findings, made the following: "That the cause of action set up in the complaint of plaintiffs herein is not barred as to said defendants, or either of them, by the…