Upon January 21, 1909, J. W. Donnellan and Marion J. Donnellan, his wife, executed to plaintiff their contract, jointly and severally guaranteeing to plaintiff "the payment of any and all sums of money which is now or may hereafter become due or owing" by their son, Kenneth Donnellan, to plaintiff up to the amount of $30,000 with interest. Upon this contract of guaranty this action was brought, alleging an indebtedness upon the part of Kenneth Donnellan to the bank in the sum of $37,605.83 Defendants set up several defenses: That the guaranty was without consideration; that Kenneth Donnellan was not indebted to the plaintiff; that the note of Kenneth Donnellan in the complaint described was not give for an indebtedness of Kenneth Donnellan and was given without consideration; that plaintiff has security ample for all of the alleged indebtedness; that no advances were ever made to Kenneth Donnellan on the faith of the guaranty; that fraud, deceit and misrepresentation were practiced upon the defendants in the securing of the guaranty. Defendants further pleaded by way of cross-complaint, charging that their guaranty was void for fraud practiced in its procurement, and asking that it be so decreed and that the plaintiff bank be compelled to surrender it for cancelation. Plaintiff in turn, besides answering the cross-complaint, amended its complaint, charging, in effect, that Kenneth Donnellan cloaked his personal transactions under the name of the Kenneth Donnellan Company, a corporation, which was owned and controlled by him; that prior to the $30,000 guaranty charged upon in the complaint, the same defendants had executed a $10,000 guaranty to secure past and prospective debts of Kenneth Donnellan, and that upon the execution of the second guaranty plaintiff surrendered to defendants the first guaranty.

A jury was called in, special issues were submitted, and the jury made its findings thereon. The jury also returned a general verdict in favor of the defendants. Because of the equitable defense of fraud and the cross-complaint seeking affirmative relief for fraud, the court itself made its own findings, adopting as a part of them the findings on the special issues which had been submitted to the jury. These findings, summarized, are that there was no consideration for either of the guaranties of the defendants; that no consideration was ever advanced to Kenneth Donnellan by reason of the guaranty of $30,000; that the promissory note of Kenneth Donnellan for $37,605.83 set forth in the complaint evidenced the joint indebtedness of the Kenneth Donnellan Company, a corporation, and E. J. Broberg, assistant cashier of plaintiff, and, in addition, an indebtedness of $1,000 upon the joint promissory note of Kenneth Donnellan and Marion J. Donnellan, his mother; that there was no forbearance to sue on account of any asserted indebtedness of Kenneth Donnellan as a consideration for the $30,000 guaranty; that the contract of guaranty was given by the defendants at the solicitation of plaintiff's president, under the following circumstances: "That P. E. Bowles, the president of the plaintiff, did, prior to the execution of the contract of guaranty set out in plaintiff's complaint, and attached as an exhibit thereto, suggest, assert and declare to J. W. Donnellan that the only business that

Kenneth Donnellan had transacted with the plaintiff prior to the date of said guaranty was having said bank collect drafts with stock attached thereto; that said business was extensive and it was advisable for the said bank to have a paper in the form of a guaranty so that the bank examiner would be satisfied in case any loss should occur, which loss would be small and the possibility remote. That said assertion, suggestion and declaration of the said P. E. Bowles to said defendant J. W. Donnellan was false and untrue, in this, that prior to the 21st day of January, 1909, a speculation in mining stocks was being carried on with E. J. Broberg, who at said time was an officer of the said bank, with Kenneth Donnellan Company, a corporation; that at the time said declarations and assertions were made by the said P. E. Bowles, president of the said plaintiff bank, to the defendant J. W. Donnellan he knew that said transactions had been carried on in the bank and that great losses had been made; that the loss due at said time was at least the sum of thirty thousand dollars.

"That for the purpose of deceiving and cheating the said defendant J. W. Donnellan and his co-defendant Marion J. Donnellan, he, the said Bowles, did represent and declare to the said J. W. Donnellan, prior to the making of said guaranty, that no other business had been carried on by said Kenneth Donnellan with said bank except the collection of drafts with stock attached; that for the purpose of lulling said defendant into a sense of security and of preventing him from making any investigation or ascertaining the truth, he, the said P. E. Bowles, did, prior to the making of said guaranty, persuade and induce one Kenneth Donnellan, who knew all of said facts, not to communicate said facts to the said J. W. Donnellan; that the said Kenneth Donnellan is the son of said J. W. Donnellan.

"That P. E. Bowles, as president of said bank, by artifice, deceit and fraud induced the said Kenneth Donnellan to abstain from seeing his father on the day that said defendant J. W. Donnellan came from Sacramento to San Francisco to meet the said P. E. Bowles, which said meeting resulted in the guaranty set out in plaintiff's complaint; that the said defendant J. W. Donnellan was induced to come to San Francisco by a telephone received from one E. J. Broberg some time in the month of January, 1909, prior to the making of the guaranty aforesaid.

"That for the purpose of inducing the said Kenneth Donnellan not to inform his father of the truth or to inform him of the losses the bank had sustained as aforesaid, he, the said P. E. Bowles, promised the said Kenneth Donnellan that he would give to the said Kenneth Donnellan sufficient business, as a stock broker, from said bank and from other institutions controlled by said P. E. Bowles that would be sufficient to pay off such indebtedness within one year from date, and he also promised the said Kenneth Donnellan that he would give him sufficient business to enable the whole of said indebtedness to be paid; that the said P. E. Bowles made said promises without the intention of performing them, or any of them, and made said promises for the purpose of inducing the said Kenneth Donnellan to refrain from informing his father of

the truth and of informing him that said loss had already been occasioned;" that the guaranty of $30,000 thus secured on the 21st day of January, 1909, was preceded by a $10,000 guaranty secured in December, 1908; that the false representations and concealments in the securing of the $10,000 guaranty of 1908 were substantially the same as those employed in securing the guaranty of January, 1909, saving that they were made by Broberg, the assistant cashier of the bank, on behalf of the bank, instead of by its president; that Kenneth Donnellan did not own all of the stock of the Kenneth Donnellan Company; that Kenneth Donnellan was not engaged in business individually under the form, guise or cloak of the Kenneth Donnellan Company; that the defendants did not know, nor did either of them know, that Kenneth Donnellan was engaged in business for himself under the name of Kenneth Donnellan Company, and that such was not the fact. The court concluded that there was no consideration to the defendants, or either of them, for the guaranty; that the indebtedness described in the complaint was not the indebtedness of Kenneth Donnellan, save and except the $1,000 not covered by the guaranty; that both guaranties were procured by fraud and deceit; that plaintiff should recover nothing and that defendants were entitled to have the $30,000 guaranty delivered up to be canceled. Judgment was entered accordingly and plaintiff appeals from that judgment, bringing up the evidence for review under a bill of exceptions.

[1] Appellant's first complaint is a general one, namely, that the court erred in submitting the whole case to the jury before disposing of the equitable issues raised by the cross-complaint. At the most, however, this complaint amounts to but a technical objection to the order of proof. Defendants might have rested their defense by charging the fraud in their answer, without a crosscomplaint. (Field v. Austin, 131 Cal. 379.) Having been brought into court to respond to their guaranty, their answer that it had been procured by fraud, if successfully established, would have given them full and complete relief. It would have effectuated an avoidance and cancelation of the contract by judicial decree as completely as it would have been canceled under their prayer for affirmative relief in their cross-complaint. But conceding the general rule

that equitable defenses are first to be disposed of and that the merits of an equitable cross-complaint should first have been determined before the submission to a jury of the issues raised in the action at law, yet this irregularity, at the most, was but an irregularity in no way affecting the substantial rights of appellant. For even upon these equitable issues of fraud it was quite proper for the court to have empaneled the jury, to have submitted the issues to that jury, and to have been advised by the determinations which the jury made upon those issues, adopting or rejecting them, as they appealed to the conscience of the chancellor. And this in fact was precisely what the court here did, in adopting the findings of the jury, and in supplementing those findings with others which it made, addressed both to the legal and equitable considerations in the case.

Appellant next contends that certain findings must be disre

garded because of their uncertainty, those findings in this respect being like the attempted findings condemned by this court in such cases as Ladd v. Durkin, 51 Cal. 277; Harlan v. Ely, 55 Cal. 340, and Goodnow v. Griswold, 68 Cal. 599. And next the contention is made that the findings themselves are in very vital respects contradictory and self-destructive. [2] To both of these contentions it may be answered, first, in general terms, that it is only when a judgment rests upon some particular finding for its validity and support that the lack of sufficient evidence to support such finding, or the contradictoriness between two findings, treating of the same essential matter, will necessitate a reversal of the case. Or, in other words, however unsupported, however lame, however inconclusive, any number of the findings may be, if in any case there be one clear, sustained and sufficient finding upon which the judgment may rest, every presumption being in favor of the judgment, it will be here concluded that the court did rest its judgment upon that finding, or those findings, and the others may and will be disregarded. (Thayer v. Tyler, 49 Cal. Dec. 441.) [3] So, here, we need not follow counsel through his argument as to the ambiguity and uncertainty which attaches to such a finding as "that the allegations of plaintiff's complaint, except as admitted by the answer or as found herein, are untrue", for the findings of the court upon the question of the fraud in the procurement of the contract of guaranty are clear, full and explicit, and are in and of themselves entirely sufficient to support the judgment. Such being indisputably the case, it matters not whether, in law or in fact, Kenneth Donnellan was or was not indebted to plaintiff. His indebtedness, under the finding that the guaranty was procured by fraud, was not protected nor secured by that guaranty, and the issue of his indebtedness is thus eliminated from this case and left for determination between the bank and Kenneth Donnellan himself. Appellant's argument on the question of indebtedness proceeds upon the proposition that the court has found, in effect, that Kenneth Donnellan was not indebted to the bank at all, and that, not being indebted to the bank, there was no liability under the contract of guaranty, conceding that contract of guaranty to be valid. Such, in truth, is one phase of the court's finding and judgment. But appellant argues that this is wholly inconsistent with the findings of the court that plaintiff's officers fraudulently concealed from defendants the fact that Kenneth Donnellan was heavily indebted to the bank, and that if Kenneth Donnellan was heavily indebted to the bank it could not be true, as by the other findings declared, that he owed nothing to the bank, and, conversely, if he did owe nothing to the bank, the officers of the bank were guilty of no fraudulent misrepresentation or concealment even if they declared that he was not so indebted. [4] But the answer to this is that these defendants were entitled to set forth by their answer as many defenses, even inconsistent defenses, as they had. (Civ. Code Proc. 441.) They were thus entitled to show, if they could, that the contract of guaranty was procured by fraud and therefore void. They were entitled to show as a separate defense, if they could, that conceding the validity of the contract of guaranty, no liability had arisen under it by reason of the fact

that no indebtedness had been incurred by Kenneth Donnellan covered by its terms. [5] It may be added that, of course, it is quite apparent that the differences between the litigants here arise over the proposition as to whether or not the indebtedness to the bank was the individual indebtedness of Kenneth Donnellan, or was the indebtedness of the Kenneth Donnellan Company, the admitted fact being that the guaranty was to protect against the debts of Kenneth Donnellan, and the evidence showing that all of these transactions by which the indebtedness arose were transactions by and in the name of the Kenneth Donnellan Company. Plaintiff on the trial (appellant here) vigorously contends that under the principle that equity will look through form to substance, it must be declared that the Donnellan Company, of which Kenneth Donnellan owned all the stock, was a mere instrumentality through which he conducted his business to avoid the claims of creditors. Respondents, however, insist that Kenneth Donnellan did not own all the stock of the corporation; that it was not, therefore, his mere instrumentality; that they did not even know that the Kenneth Donnellan Company was doing business; that they never undertook to guarantee the debts of the Kenneth Donnellan Company; that as guarantors favored by the law they are entitled to stand upon the strict letter of their contract, and that the principle of equity invoked, while applicable in cases where it is sought to charge the principal debtor hiding behind the veil of his own corporation, has no applicability whatsoever to a contract of guaranty such as this, which runs to the debts of an individual and to the transactions of that individual, and not to the debts of the corporation nor to transactions of that corporation. The fact that the court adopted defendants' view of this matter goes far to explain away the asserted contradictoriness of the findings. But this consideration need not further be pursued, since the contradictoriness which appellant asserts even if it exists has no materiality, we repeat, if the guaranty was secured by fraud. Or, if it has materiality at all, it is only in argument as to the weight of the evidence touching the concealment of plaintiff's officers as to the indebtedness of Kenneth Donnellan to the bank, in view of the finding of the court that there was no such indebtedness. And upon this proposition we need only say that plaintiff contends that at the time the guaranty was given, Kenneth Donnellan was personally indebted to the bank; that the contract of guaranty was fairly procured and that it covered and was meant to cover this precise indebtedness. The duty of the guarantee under the circumstances, does not depend upon the ultimate determination of the court as to whether or not a debt, or a debt in any given amount, existed. It depends upon his knowledge and belief and the obligation upon him to disclose, or the right resting with him not to disclose, to the intending guarantor what that knowledge and belief is.

[6] So, necessarily, we are brought to a consideration of the allessential findings of the fraud practiced upon the defendants in the procurement of their contract. The findings in this regard have been quoted, since they set forth these matters with particularity. Are these findings sustained? Indubitably they are.