Stanton v. Weldy

CHIPMAN, P. J.

This is an action on two certain instruments, alleged to be promissory notes, each reading as follows:

“$500.00 San Jose, Cal., Nov. 14th, 1906.

“For value received, we promise to pay C. O. Stanton or bearer, Five Hundred Dollars, Gold Coin of the United States, with interest thereon from day of date until paid at the rate of six per cent per annum in the following manner, to wit: On or before one year.

“This note is given for the purchase price of One seventh of Percheron Stallion, Name Decide, Dark Grey. Foaled April 20th, 1901. No. (52180) 40762, and the express condition of the sale of said property is such, that the title, ownership and right of possession thereof does not pass from the said C. O. Stanton, or their assigns until the principal and interest above specified, and all costs, are paid in full; and the holder of this note shall have the right and full power

[376]

to take possession of said property at any time they may deem themselves unsafe or insecure, and all payments made thereon shall be retained by the holder thereof; and in case said property, together with all payments made thereon shall not be equal in value to the sum of said note, together with accrued interest and costs, including a reasonable attorney fee in the premises, at the time it shall be taken by the holder hereof, then this obligation shall continue to be binding; and the purchaser hereby agrees to pay any deficiency on demand, and that the same may be collected by due process of law.

“J. A. WELDY

“J. R. WELDY.”

Alleging nonpayment and that the sum of $150 is a reasonable attorney’s fee to be allowed in the action, the prayer is for judgment for $1,177.50, principal and interest, and $150, attorneys’ fees.

General and special demurrers were overruled and defendants filed a verified answer to the unverified complaint, denying, on information and belief, its averments alleging the execution and delivery of said promissory notes; denying directly that there is due and owing or unpaid the principal or interest or any other amount; and, for further answer, alleged that defendants “received no consideration for the so-called promissory note set forth in said first cause of action,” and like averments as to the second alleged cause of action. The cause was tried by a jury and, by the direction of the court, the jury rendered a verdict for plaintiff. Defendants appeal from the judgment on the verdict and from the order denying their motion for a new trial.