West v. Neece

WEYAND, J.,

pro tem.

This action was brought to enforce the payment of a promissory note, dated June 7, 1924, in the sum of $2,000, and which note was by its terms pay

[2]

able November 15, 1924. Said note was executed by the appellants above named.

The complaint is in the usual form, and it alleges that on December 15, 1924, the appellants paid on the principal of said note the sum of $150, and that they paid on said day the sum of $70' on the interest thereon.

In the answer of the appellants, after making denial of the execution of said note, and denial of the payments of interest as in said complaint set out, the appellants apparently attempt to set up an affirmative defense of failure of consideration. In that behalf they allege that the note sued upon was given in consideration of the plaintiff’s promise to deliver to defendants $10,000 worth of the capital stock of the Long Beach Realty Company, a corporation, and that this stock was never delivered as promised.

The trial court found against the appellants on the issues thus tendered, and gave plaintiff a judgment for the amount due on the note, less the payments. From this judgment the defendants appeal.

The evidence discloses that prior to the execution of the note here involved, and on November 1, 1923, one J. M. Hulett had made and executed his promissory note to plaintiff in the sum of $1,850. Hulett had attempted to secure the payment of this note by giving an order for the delivery of the above-mentioned shares of stock, which were then in process of being issued. The delivery of this stock was prevented by an order of the corporation commissioner of the state of California, excepting as to $450- worth thereof hereinafter referred to.

The evidence further shows that on November 1, 1923, the present defendants gave to plaintiff herein their promissory note in the sum of $2,000, and that just prior to June 7, 1924, plaintiff herein had brought suit thereon against the present defendants for its collection. Upon the bringing of this suit a settlement was effected whereby the defendants were assigned the Hulett note, and were given a dismissal of the suit then pending against defendants herein.