Lagomarsino v. Giannini

GRAY, C.

The plaintiff sets forth in his complaint a promissory note for the principal sum of three hundred and fifty dollars, executed by the husband of the defendant in his lifetime to the plaintiff. He alleges further that he demanded payment and threatened suit against the maker of said note, and that thereupon the defendant promised that if the plaintiff would pay to her the sum of one hundred dollars and not commence the suit, the defendant would guarantee the payment of the said note of three hundred and fifty dollars and the further sum of one hundred dollars. That thereupon the said plaintiff paid to defendant one hundred dollars, and the defendant wrote her name across the back of said note and placed figures thereon as follows, to wit-: “Mrs. Rosa Lagomarsino $450.” The plaintiff demanded judgment for four hundred and fifty dollars and interest. On a trial before' a jury plaintiff obtained a verdict and judgment for three hundred and fifty dollars.

The defendant appeals from an order denying her a new trial. One of the defenses made at the trial was that the signature of the defendant upon the back of the note was made without consideration. We think the undisputed evidence taken at the trial established this defense.

[546]

The note executed by defendant’s husband was dated January 1, 1898, and was due “on demand.” The plaintiff visited his cousin, the husband of defendant, about January 1, 1900, finding him sick in bed, and demanded payment of the note. The cousin replied that he had no money, and his wife, the defendant, asked for a further loan of a hundred dollars. The plaintiff agreed to make the loan and to deliver the money to defendant’s brother. Some ty?o or three days thereafter defendant’s brother called on plaintiff and received the hundred dollars. This must have been either the day before or on the same day that defendant’s husband died, for the latter died on January 3, 1900. In none of those conversations does it appear that anything was said or agreed to the effect that the defendant would pay either her husband’s note or the hundred dollars that was then loaned. Some time thereafter, the evidence as to the date varying from a month and a half to a year and a half after the death of .the husband, the plaintiff came to the defendant anil induced her to sign her name on the back of the note and write the figures thereon ‘ ‘ $450. ’ ’ The defendant testifies that the plaintiff “came there so often that at last I signed it to satisfy him so he would not bother me.” She further says: “I did n’t get a cent for signing that note.” She denies and says that it is not true that she promised that if plaintiff would lend her a hundred dollars and would not commence suit she would pay plaintiff the whole amount. She declares she said nothing of that kind. There is no evidence that she did sa!y anything of that kind at any time. ;