Stradley v. Tout

CURTIS, J.

Plaintiff instituted this action against the defendants to recover the amount due on a promissory note, executed by defendant Tout, and indorsed and payment thereof guaranteed by defendants Albert and Valencia.

[531]

The defendant Tout failed to appear in the action and judgment by default was rendered against him for the full amount of the note. The court refused to give judgment against either of the defendants, Albert or Valencia, but rendered judgment in their favor, that is, a judgment that plaintiff take nothing against either of said defendants. The appeal is taken by plaintiff on the judgment-roll only, and from only that part of said judgment in favor of the defendants Albert and Valencia. The findings show that the note was executed by Tout in favor of Albert, who, prior to its maturity, indorsed the note to Valencia without consideration and for the purpose of collection. Valencia, before its maturity, indorsed the note and delivered it to plaintiff as security for the payment by said Valencia of certain money due and thereafter to become due plaintiff from Valencia on account of groceries purchased and to be purchased by Valencia from the plaintiff. The amount due plaintiff on this grocery account, the court found was $1,851.75. The court further found that the amount due on the note was $2,000 principal, $151.20 interest and $200 attorney’s fees, for which amounts the court gave judgment in plaintiff’s favor against defendant Tout, and further provided that plaintiff, after paying himself the amount found due him, should pay the balance, if any remaining in his hands, to Valencia and Albert. The court found that, although the note was executed in favor of Albert, at all times Albert and Valencia each owned one-half of said note, but that plaintiff had no knowledge of the ownership of the one-half of said note by the defendant Albert.

It is the contention of plaintiff that the findings show that he was the

bona fide

holder of the note sued on in due course under the so-called “Uniform Negotiable Instruments Law”; that he held the note as pledgee, and that he had the right to enforce payment thereof from all parties liable thereon, including Albert and Valencia, and to apply the proceeds upon the indebtedness owing to him by Valencia, and that the court therefore erred in granting judgment in favor of the defendants Albert and Valencia.