Chafoin v. Rich

Belcher, C. This is an action upon a promissory

note which reads as follows:—

“ $4,000. Mayfield, June 16,1883.

“ Three months after date, we promise to pay to the order of Martin Chafoin four thousand dollars, at two per cent per month from date. Value received. Interest to be paid semi-annually. “ A. G. Rich.

“Michel Dubs.”

The defendants answered to the complaint separately. Defendant Dubs, by his answer, denied that he executed the note for a good and valuable consideration, or for any consideration whatever, or that he was indebted to the plaintiff, for or on account of the note, in the sum due thereon, or in any sum; and he averred that he signed the note only as a surety for defendant Rich, and at the time was known by the plaintiff to be a surety, and was received and accepted by him - as such; that plaintiff failed and neglected to present the note to Rich for payment at or about the time it became due, and failed and neglected to notify him, Dubs, of its non-payment, until about the month of February, 1884. Wherefore he prayed that plaintiff take nothing as against him.

After trial, the court found the facts to be as alleged by Dubs, and accordingly rendered judgment against Rich for the principal of the note, and the interest thereon computed up to that time, making $5,778.67, and in favor of Dubs for his costs.

From this judgment in favor of Dubs, the plaintiff appealed to this court, where the judgment was reversed, and the cause remanded, with directions to the court below to enter judgment against the respondent on the findings. (Chafoin v. Rich, 77 Cal. 476.)

The remittitur in the case was filed in the court below, January 12, 1889, and on the same day judgment was entered by that court in favor of the plaintiff and against Dubs for the sum of $9,349.16, besides costs, that being the amount found due on the note for principal and interest, computed at the rate named therein up. to the [473]time of such entry. From the judgment so entered, this appeal is prosecuted by Dubs.

The judgment recites that the cause came duly before the court on the twelfth day of January, 1889, and that the attorney for plaintiff presented to the court the remittitur from the supreme court, whereby it appeared, etc.; “and it now appearing to the court, upon and from due and legal proofs, that there is now due and owing upon the promissory note set out in plaintiff's complaint, from said defendant Michel Dubs, to the plaintiff, for principal, the sum of $4,000, and for interest, the sum of $5,349.16, aggregating $9,349.16, and that plaintiff is now entitled to judgment therefor, -with costs. Wherefore, by reason of the law and the premises, it is ordered, adjudged, and decreed," etc.