
    No. 8,758.
    Department Two
    March 3, 1885
    JOHN MULLER, Respondent, v. E. F. OHM, Appellant.
    Guaranty—Note Payable out of Particular. Fund—Pleading—Demurrer.—The complaint in an action on a guaranty to pay a note out of a particular fund, after the same has been collected by the guarantor, is sufficient on. demurrer, without an averment that all of the fund has been collected.
    Appeal from a judgment of the Superior Court of the city and county of San Francisco.
    The facts are sufficiently stated in the opinion of the court.
    
      Wm. H. Fifield, and H. H. Lowenthal, for Appellant.
    
      Robinson, Olney & Byrne, for Respondent.
   The Court

The defendant is sued on guarantees in the following words;

“ The-amount of this note to be paid out of the Park Avenue assessment money, after being collected by me.
“Guaranteed to be paid out of the assessment money, .after having been collected by me.”

The guarantees were indorsed on promissory notes, respectively, and were signed by defendant. The complaint contains the averment as to each guarantee, that the defendant, before commencement of the action, collected more than $10,000 of the Park Avenue assessment, referred to in said indorsement.

The only point in the case is, whether plaintiff can have judgment without averring that all the Park Avenue assessment had been collected.

Admitting, which we do not, that the defendant would be justified in claiming that the notes were to be paid out of the last of the collections of the assessment, it is sufficient to say that it does not appear but that much of that which would in such case be due plaintiff had been collected by defendant; it may be that an inconsiderable sum remained uncollected. The complaint is sufficient, tested by demurrer. As to the defenses set up by defendant in his answer, he offered no evidence.

Judgment affirmed.

Hearing in Bank denied.  