Appeal from the Fourth District.

Action upon a written agreement in the following words:

Articles of agreement made and entered into this 19th day of February, 1857, by and between J. Mora Moss, party of the first part, and H. W. Haileek, A. C. Peachy and P. W. Van Winkle, executors of the estate of J. L. Folsom, deceased, parties of the second part, witnesseth, that whereas the said estate and the said parties of the second part, in their capacity of executors as aforesaid, hold two hundred and fifty shares of the capital stock of the 6 Sacramento Valley Railroad Company,’ on which the said com pany has called for an unpaid assessment, amounting in the aggregate to the sum of $7,433.88, and whereas the said executors have declined to pay said assessment, except upon a guaranty to the effect hereinafter stated. Now, in consideration that the said executors have agreed to pay the said assessment, and for the further consideration of one dollar in hand paid to him by the said executors, the said Moss hereby covenants and agrees with the said Haileek, Peachy and Van Winkle, executors as aforesaid, that if the said stock, in the course of the administration of said estate, shall be sold at auction, upon reasonable notice, the proceeds of said sale shall amount to as much as the assessment to be paid by said executors as aforesaid, together with an advance thereon of one per cent.; and if the proceeds of said sale shall be less than the sum aforesaid, including the said advance, then the said Moss will make good the deficiciency to the said estate, on demand after the said sale. In testimony whereof, the said J. Mora Moss has hereunto set his hand and seal, the day and year first above written.

(Seal) “ J. Mora Moss.

“ Witness : E. A. Caselm.

The complaint averred, among other things, that in due course of administration and under an order from the Probate Court of San Francisco for the sale of the personal property of plaintiffs’ testator, they sold at public auction, after ten days notice published in the “ Herald ” and “ Alta ” newspapers, the shares of stock mentioned in the above agreement, to the highest bidder, for the sum of $4,049.75, and that defendant had actual notice of and was present at the sale. The suit is for $3,458.47, the difference between the assessments paid by plaintiffs under the agreement, to wit: $7,433.88, with one per cent, added, and the amount for which the shares sold.

The answer was a general denial. The Court below found among other things that the sale was upon reasonable notice by publication in the “Herald” for seven days and in the “Alta” for eleven days preceding the sale, and that defendant Moss was present at the sale, and that it was made in due course of administration under an order of the Probate Court. Accordingly plaintiffs had judgment for $3,333.22, the difference between the assessments, with one per cent, added, and the proceeds of sale. By stipulation, the Sacramento Valley Railroad Company was made party defendant, and the same judgment entered against it. ■

Defendants appeal.