Kellogg v. Lopez

SMITH, C.

Suit on a promissory note for the sum of fifteen hundred dollars, with interest, etc. The note runs' from the defendant Lopez to H. F. Anderson as payee. It was indorsed by the latter to the Bank of British Columbia; and upon payment by Anderson was, by his direction and for his use, assigned by the bank to the plaintiff. The defense set up in the answer is in effect that the note was signed by Lopez for the accommodation of Anderson, and that it was without consideration. The verdict and judgment was for the defendant. The appeal is by the plaintiff from an order denying his motion for a new trial.

The principal question involved in the case is as to the sufficiency of the evidence to justify the verdict; with relation to which the defendant’s answer may be regarded as "setting up two defensas: The one, that he signed as security for Anderson only (Civ. Code, sec. 2832); the other, that there was no consideration for his promise (Civ. Code, sec. 1550). These defenses are in effect identical, but they rest on different principles, which should be distinguished.

"With regard to the former, there was no evidence in the case tending to show that Lopez signed the note for the accommodation of Anderson. But the facts proven by the defendant were, merely: That Anderson and Lopez and one Stackpole were stockholders of the San Mateo Coursing Association, a corporation, and made and indorsed the note for the accommodation of the association; that this was done, in pursuance of an agreement to that effect, made at one time and as part of one transaction; that the note was then delivered to an agent of the association to be discounted for its use, and that the money was received and used by the association. Upon this state of facts it is clear, at least in this state, that in equity—where “the form of the instrument may be . . . disregarded”—the parties to the note are tó be regarded as mere sureties of the association, and as such entitled to contribution from each other.

(Reynolds

v.

Wheeler,

10 Com. B., N. S. 564;

McDonald

v.

Whitfield,

L. R.

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