Borden

Plaintiff, as executrix, brought this action against the First National Bank of Elsinore and Beckie Berg to recover money which had been deposited in a savings account by the decedent, Benjamin Borden, and allegedly converted by the bank. The bank claimed the money as payment of a note which had been endorsed and guaranteed by Borden. After a court trial, judgment was entered for defendants. Plaintiff is appealing from the judgment and from an order denying plaintiff’s motion for a different judgment, made under Code of Civil Procedure section 663.

The underlying circumstances may be stated briefly. During the period between 1955 and 1960, Benjamin Borden and Beckie Berg were associated in the operation of a hotel *171 in Elsinore. That this business relationship was somewhat informal and confused is reflected by the litigation reported in Berg v. King-Cola, Inc., 227 Cal.App.2d 338 [ 38 Cal. Rptr. 655 ].

On June 11, 1959, at the request of Borden, the bank loaned $5,000 on. a note executed by Beckie Berg as maker. The note was made payable to Borden, who signed an endorsement and guaranty on the back side of the note in the following language: “_hereby guarantee payment of the…