Muller v. Swanton

KERRIGAN, J.

This is an appeal by the plaintiff from a judgment in favor of defendant F. W. Swanton, and from an order denying plaintiff’s motion for a new trial. A former judgment in the same action in favor of said defendant was reversed by the supreme court.

(Muller

v.

Swanton,

140 Cal. 249, [73 Pac. 994].) The action is on a promissory note for $1,222, which was executed by the defendant to W. B. Fonville and indorsed by Fonville to the New York Life Insurance Company and by it in turn indorsed to the plaintiff merely for the purpose of collection. The answer does not deny the due execution of the note, nor that it was indorsed to the insurance company prior to maturity, but sets forth that there was no consideration for the note, that it was obtained by fraud, that the insurance company gave no consideration for the note and took it with notice of the circumstances under which it was made.

The facts are these: W. B. Fonville was sent to this state by the home office of the New York Life Insurance Company to solicit insurance independently of the local office, of which the general manager was one A. G. Hawes. In carrying out this object Fonville called on the defendant in Santa Cruz with a view to writing a policy of insurance on defendant’s life or the life of some member of his family, and represented to defendant that if he could do so it would be a lead to others to apply for insurance in the company represented by him, as defendant’s family was well known in that part of the state. He also told defendant that if he succeeded in writing a named amount of large insurance he would be installed in the position occupied by Hawes as the Pacific coast representative of the insurance company, a position carrying a salary of $20,000 a year. After much solicitation on the part of Fonville, Swanton finally consented to allow him to write a policy insuring the life of defendant’s father for $10,000, with the understanding that the note given by the defendant to Fonville for the premium would not have to be paid. In accordance with this arrangement, Fonville procured the issuance of the policy by the insurance company, and the defendant made and- delivered his promissory note for $1,222, the amount of

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