Bradley v. Bush

CHIPMAN, P. J.

The action is to recover judgment against defendant as indorser of two promissory notes • for $1,000 each, executed by the Sunset Vineyard Company, payable to defendant, dated January 25, 1892, and falling due on or before January 1, 1898. The notes not being paid at maturity, were duly protested and notice of nonpayment given defendant. Plaintiff’s intestate died December 19, 1894, and the notes came into plaintiff’s possession among other effects of deceased. Defendant refused payment and hence this suit.

The principal contention of plaintiff is that Finding II is not supported by the evidence. Paragraph “2” of the amended answer set forth the defense to the action as follows:

“The defendant denies that he did, at any time prior to the first day of February, 1894, or at any other time, whatever, or at all, for value received, or at all, duly or otherwise, indorse or transfer or deliver said promissory notes set out in the complaint, or either of them, to James A. Bradley, plaintiff’s intestate named in said complaint.

“But, on the contrary thereof, defendant alleges: That long prior to the first day of February, 1894, tbis defendant wrote his name upon the back of said notes, and each of

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them, and thereupon placed said notes in the possession of M. W. Upton, at the city of San Francisco, and thereafter agreed with the said James A. Bradley and with the Sunset, Vineyard Company, that the said defendant would surrender and deliver up the said promissory notes to said Sunset Vineyard Company, and thereupon instructed the said M. W. Upton to deliver the two promissory notes set out and described in the complaint herein to the said Sunset Vineyard Company, and that thereafter the said James A. Bradley received the said promissory notes from the said M. W. Upton, acting as the Agent of the said Sunset Vineyard Company^, and, as defendant is informed and believes, thereafter retained the said notes in his possession until the death of the-said James A. Bradley.

“That said order to the said M. W. Upton for the delivery of said notes to the said Sunset Vineyard Company was made for the purpose of surrendering up to the said Sunset Vineyard Company the said evidence of indebtedness, and for the purpose of canceling the same, and not with the intention that the same should ever become the property of the said James A. Bradley or that said James A. Bradley should have-any right or interest therein.”