Folsom v. Bartlett

Appeal from the Fourth Judicial District.

This suit was brought by Folsom, as indorsee of two promissory notes, each for $975, dated August 1st, 1850, made by Bartlett, payable, at sixty and ninety days, to the order of one Buckelew, and by him indorsed to the plaintiff, subject to a credit of $550, paid to Buckelew on the 19th of October, 1850. Defendant pleaded, first, a general denial. Second, that the notes were indorsed to the plaintiff after maturity; that the consideration of the notes was an agreement between Buckelew and the defendant, by which the latter purchased of Buckelew a lot in San Francisco, for $3900, payable in four equal instalments, for the last two of which the notes in question were given; and Buckelew agreed, on payment of all the instalments, to convey or cause to be conveyed to the defendant or his assigns the said lot, by good and sufficient deed, &c.; that all of the instalments had become due before the commencement of the suit; and that Buckelew had never conveyed or tendered a conveyance of the lot, nor caused the same to be done; nor was he competent or capable to do so.

The cause was tried by the Court, without a jury. The plaintiff having proved his case, the defendant called the indorser; who testified that the notes were given for the consideration stated in the plea; that they were indorsed to the plaintiff after maturity; and that no conveyance had been made or tendered to the defendant. The Court held that the facts testified by the witness constituted no defence; and the defendant excepted. The' Court gave judgment for the plaintiff for the amount of principal and interest due on the notes. The defendant appealed.