Wetzel v. Cale

SLOSS, J.

This is an action upon a note whereby F. M. Cale promised to pay to L. H. Honey or order the sum of five thousand dollars, with interest, in four installments of one thousand two hundred and fifty dollars each. The instrument contained a provision that, in case any installment was not paid within five days after it became due, the whole of the principal and interest remaining unpaid should forthwith become due and payable at the election of the holder of the note. Before the delivery of the note by Cale to Honey, Mabel G. Cale and J. Jerome Smith indorsed the note by writing their names on the back of it. Honey indorsed the

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note and delivered it to the plaintiff. The complaint alleges that the first installment was not paid when due, that more than five days had elapsed since such installment became due, and that the whole of the note, with interest, is now due and payable. Judgment for five thousand dollars, with interest and costs, was prayed. F. M. Cale and Mabel

G.

Gale defaulted. J. Jerome Smith answered, denying various allegations of the complaint, and setting up certain matters by way of affirmative defense.

A jury trial was waived, and the court made its findings and entered judgment in favor of the plaintiff. From this judgment Smith appeals.

The complaint contains allegations of presentment and notice of dishonor. These allegations were, however, immaterial. By reason of the provision allowing the holder, upon certain conditions, to accelerate the time for payment of the principal, the note was not a. negotiable instrument.

(National Hardware Co.

v.

Sherwood,

165 Cal. 1, [130 Pac. 881];

Smiley

v.

Watson,

23 Cal. App. 409, [138 Pac. 367]; Civ. Code, sec. 3088.) The appellant, who had written his name upon the back of it before delivery to the payee, was therefore a guarantor.