Vandewater v. McRae

By the Court, Shafter, J. The defendants are charged by the complaint as indorsers of a promissory note. The following facts are set forth in the agreed statement on motion for new trial:

“ On the fifteenth day of December, 1858, the plaintiff loaned to the French Town Canal and Mining Company, the sum of fifteen thousand dollars, for which sum the said company made their promissory note payable to the order of the above named defendants, who indorsed the same for the accommodation of the said makers, the French Town Canal and Mining Company; and, after such indorsement, said note, so indorsed, was delivered to the plaintiff.

“ That at the maturity of said note, the same was duly presented to said makers, for payment, at the office of E. E. Brewster & Co. in the City of San Francisco (being the place named in said promissory note,) and payment thereof demanded and refused, and that the above named defendants were duly notified of such demand and non-payment. That there was [600]due on said promissory note, and unpaid, the sum of fifteen thousand four hundred and seventy-five dollars and ninety-one cents, after deducting all payments, and that the plaintiff is the owner and holder of said note.

“ That simultaneously with the making, indorsing and delivery of said promissory note, the said makers, the French Town Canal and' Mining Company, made, executed and delivered to the plaintiff a mortgage, conditioned for the payment of said sum of fifteen thousand dollars and interest, so loaned, as above set forth, to said company, according to the terms of said promissory note, and as security therefor; by which said mortgage said company mortgaged to the plaintiff certain real estate and premises in the County of Butte, known as the French Town Canal and Mining Company Water Ditch.

“ That on the 13th day of January, 1862, said plaintiff instituted suit in the District Court of the Fourth Judicial District of the State of California, in and for the City and County of San Francisco, wherein the said French Town Canal and Mining Company, and the defendants in this suit, and others, were defendants, to foreclose said mortgage and sell said mortgaged premises to satisfy said note and for judgment and payment against the said French Town Canal and Mining Company, and the defendants in this suit, for the amount which might be found to be due to the plaintiff for principal and interest upon the said note and mortgage, after applying the proceeds of sale of the mortgaged premises toward the payment of the same, and the costs of the said action.