5. Sureties are never bound beyond the strict letter of their contract; they have the right to stand upon the precise terms of their agreement, and there is no authority for extending their liability beyond the stipulation to which they have chosen to bind themselves.-W. P. Fuller & Co. v. Alturas School District, 28 Cal. App. 609, 153 Pac. 743.

6. Interpretation of contract. - In interpreting the language of the undertaking for the purpose of gathering its scope or the measures of the liability of the sureties, we must do so by treating or viewing the contract and the undertaking as a whole or as constituting an indivisible contract. In other words, we must, in order to ascertain the nature and extent of the liability to which the sureties have bound themselves, examine the undertaking by the light of the agreement of whose terms it guarantees the faithful performance.-W. P. Fuller & Co. v. Alturas School District, 28 Cal. App. 609, 153 Pac. 743.

§ 2837.

1. Construction as contract of suretyship -Rules of interpretation.—A contract of suretyship is to be construed the same as other contracts, for the purpose of determining the intention of the parties; to ascertain this intent resort is first had to the contract itself, and if the intention of the parties is doubtful under the terms of the instrument, recourse may be had to the surrounding circumstances to determine its meaning.-Schwab v. Bridge, 27 Cal. App. 204, 149 Pac. 603.

2. The old rule of strictissimi juris applies only to the extent that no implication shall be indulged in to impose a burden not clearly inferable from the language of the contract, but does not apply so as to hold

that the contract shall not be reasonably interpreted as other contracts are. In interpreting the terms of a contract of suretyship, the same rules are to be observed as in the case of other contracts.-Weinreich Estate Co. v. Johnston, 28 Cal. App. 144, 151 Pac. 667.

§ 2840.

1. Release or exoneration of surety.—A surety, by virtue of the provisions of section 2840 of the Civil Code, is not discharged from liability by departures from the contract by the obligee without the surety's consent, when such variations have not had the effect of so prejudicing the surety as to injure or impair his remedies in any degree or of lessening his security, in any measure, or are not in any sense inconsistent with his rights under the bond.-Dunne Investment Co. v. Empire State Surety Co., 27 Cal. App. 208, 150 Pac. 405.

2. A surety is exonerated in like manner with a guarantor, for section 2840 of the Civil Code so expressly provides, and a guarantor is exonerated, except in so far as he may be indemnified by the principal, “if by any act of the creditor, without the consent of the guarantor, the original obligation of the principal is altered in any respect, or the remedies or right of the creditor against the principal, in respect thereto, in any way impaired or suspended."-Dunne Investment Co. v. Empire State Surety Co., (Sup. Ct.) 27 Cal. App. 223, 150 Pac. 411.

3. Where the original obligation of the principal is so altered, or the remedies or rights of the creditor against the principal so impaired or suspended, no inquiry will be allowed as to whether or not the surety was in fact injured thereby.-Dunne Investment Co. v. Empire State Surety Co., (Sup. Ct.) 27 Cal. App. 223, 150 Pac. 411.

1. Priority of liens.-The lien of a warehouseman for storage is prior to the lien of a mortgagee of the goods who has given his consent to their storage.-Schmidt v. Bekins Van & Storage Co., 27 Cal. App. 667, 155 Pac. 647.

2. A warehouseman has a lien on mortgaged goods for his storage charges thereon superior to that of the mortgagee, where it is made to appear that the mortgagee was not only present at the time the goods were removed from their original location and loaded on a wagon belonging to the warehouseman and made no objection thereto, but two months thereafter signed a paper prepared by the warehouseman stating that the goods were stored with the mortgagee's consent; and the fact that at the time of signing such paper he was unable to read the same and thought he was only

signing a paper which declared that he held a chattel mortgage on the property, the purpose of which was to enable the warehouseman, if the mortgagor demanded the property, to refuse her demand and retain possession of it for the mortgagee, does not affect the superiority of the warehouseman's lien.-Schmidt v. Bekins Van etc. Co., 27 Cal. App. 667, 155 Pac. 647.

§ 2911.

1. Lien of mortgage- Extinguished by bar of statute. - Notwithstanding that the lien of a mortgage is extinguished by the barring of the debt by limitation, the mortgagor can not without paying his debt quiet his title against the mortgagee. This rule is not applicable to one who acquired the mortgaged land by purchase for a consideration after the lapse of the time within which an action to foreclose a mortgage

ing to the same.-In re Johnstone, 220 Fed. 218.

2. A chattel mortgage is not rendered valid by the fact that the parties go before a notary public with the purpose and intent of making the affidavit required by section 2957 of the Civil Code, if neither of them sign nor swear to the affidavit.-In re Johnstone, 220 Fed. 218.

3. The certificate of a notary public that the parties to a chattel mortgage were duly sworn and deposed that it was not given to defraud creditors is not conclusive, when they have not signed the affidavit.-In re Johnstone, 220 Fed. 218.

§ 2972.

1.

Mortgage on crop-Lien lost, when.The lien of a mortgage on a crop of grapes is not lost by the delivery of the crop to a packing house for marketing by the mortgagor in his own name in violation of an agreement, because the mortgagor becomes the agent of the mortgagee. Nor is the lien lost by the wrongful removal of the crop from the land, independent of any agreement; such a lien still exists against the consignee of the mortgagor unless he can clothe himself with the character of an innocent purchaser for value.-Crosby Fresno Fruit Growers' Co., 30 Cal. App. 308, 158 Pac. 1070.

§ 2986.

V.

1. Pledge or sale.-When personal property is delivered as security, the transaction is a pledge, but if goods are delivered by a debtor to his creditor in payment of the debt, the transaction has the effect of a sale, and the same is true if goods are delivered by the debtor to the creditor to be sold and the proceeds applied on the debt with a return of the surplus.-Rauer v. Rued, 27 Cal. App. 556, 150 Pac. 780.

$3000.

1. Pledgec-When may exercise power of sale. While it is true that the relation existing between parties to a transaction where collateral is placed in the hands of the pledgee as security for the payment of a debt, with power of sale in case of default, is in the nature of a trust relation, and that the power must be exercised in good faith, yet, where the pledgee makes the sale in the manner provided by law and in accordance with the conditions of the contract, and it is not shown that he did or caused to be done anything for the purpose of preventing a fair sale, the pledgor has no right to complain. Under such circumstances the pledgee may take the market as he finds it and exercise his power of sale accordingly.-Williams v. Parker, 30 Cal. App. 71, 157 Pac. 550.

§ 3003.

1. Waiver of notice of sale. -Where a promissory note recites the fact of deposit with the payee of certain shares of corporate stock as security for the payment of

the obligation, and provides that in case of failure of the payee to furnish such additional security as called for, or in case of nonpayment of the obligation, that the payee may sell the stock without notice, it can not be contended in an action to recover on the note that the pledge sale which was made was illegal for want of actual notice to the pledgor, on the theory that the waiver was limited to the condition which might arise upon the failure of the pledgor to furnish additional security, if called for. -Williams v. Parker, 30 Cal. App. 71, 157 Fac. 550.

1.

Vendor's lien.-The vendor's lien is in the English and American law exceptional in character. It was an importation from the Roman civil law, and found its recognition in the English system through its courts of chancery. The equitable principle was that the person who had secured the estate of another ought not in conscience to be allowed to keep it and not pay full consideration money, and that to enforce that payment it was just that it should be made But charge upon the estate so taken. being from its nature a secret lien, being thus an intrusion upon and an exception to every principle of our jurisprudence, which frowns upon secret transactions of all kinds, some courts have criticised its existence, some states by statute have destroyed it, and every court has been swift to declare that the taking by the vendor of any security is a waiver of the lien. — Martin V. Becker, 169 Cal. 301, Ann. Cas. 1916D 171, 146 Pac. 665.

a

2. A vendor who retains the legal title under an executory contract for the sale of land does not waive his lien by bringing an action at law for the recovery of the purchase price.-Ehrhart v. Mahony, 170 Cal. 148, 148 Pac. 934.

§ 3051.

1. Lien for services on property-Construction.-One making repairs to an automobile at the request of one legally in possession of the automobile under the terms of a contract for the conditional sale thereof is entitled to a lien for the work done and materials furnished.-Davenport v. Grundy Motor Sales Co., 28 Cal. App. 409, 152 Pac. 932.

2. -Constitutionality. Such section of the code is not unconstitutional because creating a lien under such circumstances.Davenport v. Grundy Motor Sales Co., 28 Cal. App. 409, 152 Pac. 932.