Levey v. Henderson

[22]

SHAW, J.

The defendants Henderson and Robinson appeal from the judgment.

The action is upon a joint and several promissory note dated January 19,1909, for two thousand dollars, payable six months after date, executed to the Merchants National Bank by P. E. Davis, Lester L. Robinson, M. O. Whelan, Geo. W. Henderson, and Geo. C. Peckham. M. O. Whelan died before the action was begun. P. E. Davis and Geo. C. Peckham made no defense and their default was entered. The present appeal involves only the defense made by Robinson and Henderson. The complaint alleges that about January 20, 1910, the Merchants National Bank sold, assigned, and transferred the note to Prank G. Hogan, and indorsed thereon the words, “without recourse on us, Merchants National Bank, Los Angeles, Cal. By W. H. Holliday, President,” and that thereafter Prank G. Hogan assigned the note to the plaintiff. Robinson and Henderson, in separate answers, each denied the assignments and alleged that, prior to January 20, 1910, the said promissory note was fully paid by the defendant P. E. Davis to the said Merchants National Bank.

The appellants claim that the court erred in denying their motion for a nonsuit on the ground that the indorsement and transfer by the bank were not proven. Where the defendant proceeds with his defense after his motion for a nonsuit is denied, and the evidence thereafter given by the other party supplies the defect or omission in the original evidence for the plaintiff, the ruling on the motion is not available as ground for the reversal of a judgment for the plaintiff.

(Ringgold

v.

Haven,

1 Cal. 117;

Smith

v.

Compton,

6 Cal. 24;

Schlessinger

v.

Mallard,

70 Cal. 334, [11 Pac. 728];