Appeal from the Fourth Judicial District.

The plaintiffs were, in 1855, appointed executors of the estate of one Folsom, deceased, which estate, among a large amount of real and other personal property, included two hundred and fifty shares of stock in the Sacramento Valley Railroad Company. ¡November 12, 1855, the executors applied for a sale of some of the property, and in their petition stated that “ The personal property of the testator consisting in stocks, a particular enumeration, description, and valuation whereof will be found in Exhibit “¡B,” under the head of stocks, they do not deem it advisable to sell before they communicate with the legatees and learn their wishes on the subject, especially as much of the stock is very low and has scarcely any market value.” And in an exhibit annexed to this petition under the head of stocks, appears: “ Sacramento Valley Railroad, amount paid in $13,034 75.” On the nineteenth day of February, a.d. 1857, the following agreement was entered into between the plaintiffs, as executors, and the defendant, J. Mora Moss :

“ Articles of Agreement made and entered into this nineteenth day of February, 1857, by and between J. Mora Moss, party of the first part, and H. W. Halleck, 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 “ Sacramento Valley Railroad Company,” on which the said company has called for an unpaid assessment, amounting in the aggregate to the sum of seven thousand four hundred and thirty-three dollars and eighty-eight cents ; and whereas, the said executors have declined to pay said assessment, except upon a guaranty to thé effect hereinafter stated. How, 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 Halleck, 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, iipon 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 deficiency 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.

“ Signed. J. MORA MOSS, [l.s.]

“ Witness, E. A. Caselli.”

Subsequently, one Donald Frazer, a creditor of the estate, filed a petition, praying that a portion of the real estate belonging thereto might be sold to satisfy his debt. The executors, March 7th, 1859, filed an answer to this petition, objecting to a sale of the real estate on the ground that there was still personal property unsold, and also in compliance with an order of the Court, a report, showing the then condition of the estate, and containing the following averment and petition:

“ That on the twelfth day of November, 1855, they presented to this Court their petition, praying for an order authorizing them to sell certain portions of the said estate, setting forth its condition, the claims against it, etc., which said petition with exhibits annexed thereto, and made a part thereof, they pray may be held and considered as part of this report and petition. And the executors further represent, that the personal property of the estate comprised under the head of 1 stock,’ in said petition of twelfth November, a.d. 1855, ought to be sold, inasmuch as the same are liable to assessments, and most of them pay no dividends to the estate; and the executors pray the Court for an order authorizing them to make such sale.”

Upon this petition, the stock mentioned in the agreement was sold. The notice of the hearing of the petition was as follows:

“ Notice is hereby given, that H. W. Halleck, P. W. Van Winkle, and Archibald C. Peachy, having filed in this Court their report and account, as executors, with a petition for an order of sale of personal property of the estate of Joseph L. Folsom, deceased, the hearing of the same has been fixed by said Court, for Monday, the twenty-first day of March, 1859, at eleven o’clock in the forenoon of said day, of the March Term of 1859, at the court-room thereof, in the City Hall in the City and County of San Francisco; and all persons interested in said estate are notified then and there, to appear and show cause, if any they have, why said petition should not be granted.”

And the order of sale by Probate Judge, as follows:

“ Application having been made to the Court by the executors of the estate of J. L. Folsom, deceased, for an order of sale of certain personal property of the estate hereinafter mentioned by the petition, in writing, of said executors, filed herein on the seventh day of March, 1859, setting forth the facts showing such sale to be necessary; which application was, by the order of this Court, on that day made and filed, set for hearing upon the twenty-first day of March last, upon which day the said executors appeared by their counsel, Gregory Yale, Esq., and certain of the creditors of the estate appeared and were represented by their counsel, Eugene Casserly, Esq.; and due proof having been there made, to the satisfaction of the Court and filed herein, that notice of said application had been given according to law, the hearing of the said application was regularly continued from that time to this day by orders of this Court duly entered of record. And now on this twenty-fifth day of April, 1859, at eleven o’clock, a.m., to which time said application was duly adjourned by the last of continuances, aforesaid, the said parties appearing by their counsel, aforesaid, and no objections or exceptions having been filed, and no opposition having been made, and the Court, from an examination of the said matter, being satisfied that a sale of said property is necessary, and that the articles are perishable property and liable to assessment and taxation, it is hereby ordered, that the said executors be authorized to sell at public auction to the highest bidder, for cash, the personal property of the estate undisposed of, comprised under the heads of “ Library,” “Pictures,” “ Table and Bed Linen,” and “ Stocks,” as set forth in their petition filed in this Court November 12th, 1855.”

Notice of the sale was given by posting in three public places, as required by the Probate Act, and also by publication in two newspapers.

The stock brought $4,175, net $4,049 75, selling at sixteen and a half and seventeen and a half cents, and leaving a deficiency, on the contract, of $3,458 47, for which the present action is brought on the contract. The market value of the stock, at time of trial, was shown to be thirty cents, or $7,500.

Bearing upon the question of notice to defendant, Moss, of the sale or notice to him of the deficiency and demand before suit brought, the only evidence is as follows:

“ One Waller testified—“ Thinks defendant, Moss, was at salesroom of auctioneers before the sale. Afterwards carried a note to defendant from Billings; the defendant afterwards came into the office, and I saw him conversing with Halleck and Billings. Billings was the attorney of executors.”

Cross-examined—“ Saw Moss at the salesroom on the morning of the day of the sale. I don’t know whether he was there at the time of the sale of this stock.”

One Sinton testified: “ Moss was present in the morning before the sale. I don’t know whether he was present during the sale of this stock. Catalogues were distributed in salesroom; Moss asked me to purchase a certain book for him.” .

Cross-examined—“ I think it more than probable, that Moss asked me to purchase the book, because he, Moss, was going away and could not be present at the sale.”

Upon this evidence, the Court found, among other things, “ that Moss was present at the sale and had personal notice thereof.” The plaintiff had judgment for the deficiency, with interest from the day of sale, from which defendant appeals.