Clay v. Martin

ARCHBALD, J.,

pro tem.

Defendant Martin was the payee of a promissory note for $3,500 made by his co-defendants, payment of which was thereafter guaranteed in writing by Martin and the same was deposited with the Peoples National Bank of Los Angeles as collateral security for a debt owing by him to the bank. Plaintiff brought suit on

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the note and guaranty. Defendant Martin alone was served and the action was apparently dismissed as to his co-defendants. The case was tried before the court, a jury having been waived. From a judgment in favor of said defendants plaintiff has appealed.

The execution of the note and guaranty is admitted by the answer of defendant Martin, which denies, however, that plaintiff is the owner and holder of the note and sets out as separate defenses- that the note was given as additional security for a loan then due said bank, which loan was paid, in full, and other facts which tended to charge plaintiff with knowledge of any infirmities in the note.

It is appellant’s contention that the third, eighth and ninth findings of the court are not supported by the evidence. Such findings are as follows: “3rd. That it is not true that plaintiff was on the 10th day of June, 1928, the owner and holder of said note, or that he has been so at all times since said date, or that he was the owner or holder at the filing of this action, or at the date of the trial, or at all. . . . 8th. That plaintiff knew all of the facts and circumstances surrounding the giving and acceptance of the said note herein sued upon, and that plaintiff accepted the said note with full knowledge of the purpose for which it was given, and that said plaintiff was not an innocent purchaser for value, or in due course, or a

bona fide

holder at all. 9th. That said note came into the possession of plaintiff at a time long. after the same became due and without any valuable consideration.”

Plaintiff introduced in evidence what is denominated “General Pledge Agreement (collateral security not described) ’ ’, proved to have been signed by Martin at the time he gave the bank a note representing his indebtedness to it and deposited some mining stock as collateral security therefor. A year or more thereafter the note sued on here was deposited as collateral security to a renewal note. Plaintiff testified that he could not remember the exact date he first saw such note but that it was in his office in the possession of O. 0. Moreland, apparently" the cashier of the bank, who at that time asked plaintiff “to take for collection as attorney” the note of defendants to which the note sued on was collateral, and that it remained in his possession from about June 10, 1928. Apparently the assignment of the prin