that the value of the securities agreed to be purchased was in excess of the agreed purchase price and that therefore the plaintiff had sustained no damages by the purchaser's failure to take and pay for them constitutes no defense to an action on the contract of guaranty. [D.-CONSIDERATION.-A written guaranty entered into simultaneously with the execution of the contract which is guaranteed and as a part thereof requires no other consideration. APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Bernard J. Flood, Judge. The facts are stated in the opinion of the court. R. P. Henshall, for Appellants. Wise & O'Connor, for Respondent. LENNON, P. J.-This is an appeal upon the judgmentroll alone from a judgment on the pleadings in favor of plaintiff. Defendant's demurrer to the complaint was overruled, and after he filed an amended answer, plaintiff moved for and obtained judgment on the pleadings. The two points made upon this appeal are that the complaint does not state a cause of action, and that the amended answer states a defense. Therefore it is contended a motion for judgment on the pleadings could not be granted. The complaint alleged an agreement between plaintiff and Hanford Investment Company, a corporation, executed on November 12, 1913, by which the plaintiff agreed to sell and the Hanford Investment Company agreed to buy the following personal property, to wit: Thirty bonds of the Union Water Company, thirty debentures of the United Properties Company, 180 shares of the preferred, and 180 shares of the common stock of the United Properties Company, for the sum of twenty-seven thousand dollars, payable on the twelfth day of November, 1914, with interest thereon from the twelfth day of November, 1913. The complaint further alleged that simultaneously with the execution of said agreement, and as a part thereof, plaintiff and defendants entered into an agreement in writing (setting it forth in haec verba), which was to the effect that defendants guaranteed that the Hanford Investment Company would well and truly purchase and take the said personal property on or before November 12, 1914, and that if the Hanford Investment Company failed to make the payment on or before that date, the defendants jointly and severally promised to pay said amount upon demand, with interest from November 12, 1913, and upon payment, the property should become the property of the defendants; that the securities which were the subject matter of the contract had been tendered to the Hanford Investment Company; that it had refused to accept or pay for them; that demand was made upon defendants to pay and they had refused. Upon these allegations the complaint prayed judgment in the sum of twenty-seven thousand dollars and interest. Appellants argue that the complaint counts upon the breach of an executory contract to buy personal property; that in such case the damage is the difference between the agreed price and its value; and that as there is no allegation in the complaint respecting the value of the property, no damage is shown, and therefore the complaint fails to state a cause of action. Appellants' conclusion is correct if the major premise is correct. But we are unable to find any grounds for the contention that the complaint constitutes an action for damages for breach of an executory contract. The theory of the complaint is sound, and is as follows: That both the principal contract and the contract of guaranty were fully executed; that when delivery of the property which was the subject matter of the sale was tendered to Hanford Investment Company, title to the same at once became vested in it, and upon its refusal to pay, the plaintiff elected to consider the stock as sold (Cuthill v. Peabody, 19 Cal. App. 304, [125 Pac. 926]); and that the contingency having arisen upon which the defendants' obligation was based, and demand having been made upon the defendants to pay the sum agreed upon, they were liable for that sum. The complaint counts upon a contract of guaranty. The defendants themselves admit that they are guarantors. They have promised to pay twenty-seven thousand dollars, based on a certain contingency, which is admitted to have occurred, and there is nothing in this promise which violates the provisions of section 2809 of the Civil Code, in which the liability of a guarantor is limited in amount to that which could be recovered from the principal. As the principal contract was executed, Hanford Investment Company, as principal, 512 was liable for the full purchase price of twenty-seven thou- The amended answer does not state a defense. The de- The claim of appellants that the agreement between re- spondent and themselves is without consideration is equally untenable. The guaranty was entered into simultaneously with the execution of the original agreement and as a part thereof, and in such case no other consideration need exist. [Civ. No. 2287. Second Appellate District.-October 18, 1917.] ALTERNATIVE METHOD RECORD AND CONTENTS.-Judgment should be affirmed for failure to print any part of judgment-roll ATTACHMENT THIRD-PARTY CLAIM.-Unverified demand is insufficient although "acknowledged" before a notary. APPEAL from a judgment of the Superior Court of San The facts are stated in the opinion of the court. Duke Stone, and Albert J. Lee, for Appellant. Walter W. Praul, for Respondent. JAMES, J.-By the opening brief in this case we are told that the appeal taken by the plaintiff is from a judgment adjudging that the plaintiff was not the owner of certain horses alleged to have been held under attachment process by the defendant constable in a suit of one Hull v. A. F. Narver. The appeal is taken by the alternative method, which requires the parties to print in their briefs such portions of the record as they may desire to call to the attention of the court. (Code Civ. Proc., sec. 953c.) No part of the judgment-roll is printed in the brief of appellant, and we are left without record information as to what the cause of action was or the issues made between the parties. For that reason alone the judgment should be affirmed. (Marcucci v. Vowinckel, 164 Cal. 693, [130 Pac. 430]; Wills v. Woolner, 21 Cal. App. 528, [132 Pac. 283]; Miller v. Oliver, 174 Cal. 404, [163 Pac. 357]; Pasadena Realty Co. v. Clune, 34 Cal. App. 33, [166 Pac. 1025]; McKinnell v. Hansen, 34 Cal. App. 76, [167 Pac. 887]; Lillard v. Abbot Hardware Co., 34 Cal. App. 719, [168 Pac. 707]; California Sav. etc. Bank v. Canne, 34 Cal. App. 768, [169 Pac. 395].) The main point upon which appellant appears to rely is that the evidence was insufficient to support the findings of the court determining that plaintiff, a third-party claimant of the property held under attachment, was not the owner of the horses. The testimony given at the trial is set forth in the briefs. It appears from that testimony that A. F. Narver was at all times in possession of the horses which were attached and which were intermingled with other horses used by him and which latter he admitted that he owned. When the attachment was made, Narver, as agent for the plaintiff, who was his wife's sister, made a written claim or demand on behalf of the plaintiff for the release of the horses. This demand was not verified by the plaintiff as the law requires (Code Civ. Proc., secs. 549, 689), but an acknowledgment was made before a notary as to the truth of the facts stated in the demand. We think the third-party claim was not in sufficient form to charge the defendant with liability. Furthermore, in view of the law that an appellate court has no function to review evidence where two different conclusions may properly be drawn therefrom, it must be held that there was some evidence sustaining the findings of the trial court. The property was found in the possession of Narver, and the presumption attending that possession was that he owned it. (Code Civ. Proc., sec. 1963, subd. 11.) The persons concerned in the alleged ownership were all members of the family of Narver, it being claimed that his mother was the first owner, and that before she died she, by bill of sale and sufficient consideration, transferred her ownership to the sister of Narver's wife. The latter would not testify that she had ever seen the animals, and the testimony of Narver's wife and wife's sister appears as to many of its features to have been affected by uncertainty and hesitatingly given. In view of the presumption imposed by the code provision, that Narver was the owner of the property found in his possession, it was for the trial judge to determine the credibility of the witnesses appearing before him in support of the third-party claim. (Code Civ. Proc., sec. 1847.) Upon the several grounds stated, it is very clear that this judgment should not be disturbed. The judgment is affirmed. Conrey, P. J., and Shaw, J., concurred. [Civ. No. 2086. First Appellate District.-October 19, 1917.] W. F. CORDES, Respondent, v. R. T. HARDING et al., Copartners, etc., Appellants. STIPULATION-APPORTION MENT OF RECOVERIES IN ATTACHMENT ACTIONS -FAILURE OF JUDGMENT CREDITOR TO DOCKET JUDGMENT-RIGHT TO SHARE IN PROCEEDS OF SALE OF DOCKETED JUDGMENT.-Where the attorneys for the respective plaintiffs in two different attachment actions against the same defendant enter into a stipulation providing that all recoveries or avails effected in either action shall be ratably apportioned between the plaintiffs according to the respective amounts of their claims or according to the respective amounts of the judgments rendered and entered in said actions, there is no implied duty that either party should docket the judgment obtained by him in the county where the property is situated so as to acquire a lien thereon; and where one of the parties does so docket his judgment and thus becomes a redemptioner, and the other party fails to so docket his judgment, and a third judgment creditor purchases the first judgment, the failure of the second |