Harper v. French

MAXET, J.,

pro

tem.

The action seeks a recovery upon a promissory note. The complaint is in the usual and customary form. The answer denies the delivery of the note described in the complaint; admits that no part of the note has been paid; denies any default on the part of the defendants; and affirmatively pleads that the note was executed without any consideration whatever.

The case was tried before a jury, and a verdict returned in favor of the plaintiff and against the defendants for the principal sums specified in the note, together with interest thereon and attorneys’ fees. Judgment was thereupon entered in favor of the plaintiff in accordance with the verdict.

The plaintiff herein, H. H. Harper, was a real estate broker in the city of Stockton, and undertook, for a commission, to sell certain properties belonging to the defendants herein. On November 13, 1931, escrow instructions were made by the defendants herein with the 'Stockton Abstract & Title Company, whereby it was provided that the note here in suit should be delivered to the plaintiff herein upon the consummation of that transaction; the sale failed to materialize, and on December 7, 1931, similar escrow instructions were executed and signed by Emma J. French, one of the defendants herein, and delivered to the abstract company above mentioned. In said last instruction the note to the plaintiff herein was specified to be delivered to plaintiff upon the consummation of that particular transaction. The latter transaction was completed and the note delivered by the abstract company to the plaintiff herein.

The purchaser of the property made a down payment that was received by the defendants. The property was sold subject to a first deed of trust, and the balance of the equity of the defendants was represented by a second deed of trust payable in instalments. No subsequent instalments were made or paid by the purchaser of said property from the defendants.

It is the contention of the defendants and appellants that the delivery of the note was conditioned upon the payment

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of the second instalment by the purchaser, and that a part or portion of the consideration for the note was the payment of the second instalment by the purchaser.