Pelton v. San Jacinto Lumber Co.

Vanclief, C. This appeal is from a judgment on a promissory note made by the San Jacinto Lumber Company to the plaintiff, and alleged to have been indorsed by the other appellants, and by M. T. Winton and D. M. McDonald, who are also defendants.

The defense pleaded by appellants is, that the note was materially altered without their knowledge or consent after it was signed by the corporation and indorsed by the other appellants, but before delivery to plaintiff.

The appeal is upon the judgment-roll without a bill of exceptions, and the only matter in controversy is whether or not the findings of fact by the court warrant the judgment against appellants.

The pertinent facts found are substantially as follows:

On May 21,1890, the corporation defendant was about to obtain a loan of two thousand one hundred dollars from the plaintiff, who then resided in the state of Hew York, and to secure the payment of such loan was to> make its promissory note with indorsers. The note was-drawn and signed at Los Angeles, California, May 1, 1890, by the corporation, through the agency of its president, M. T. Winton, and its secretary, F. M. Caswell, and immediately thereafter was indorsed by the appellants, Caswell and Fuller, and left with the president, Winton, for the purpose of procuring additional indorsers. As thus signed by the corporation and indorsed by Caswell and Fuller the note was payable six months after date, but no place of payment was designated therein. Afterward, in the absence of Caswell and Fuller, and without their knowledge or consent, Winton altered the note so as to make it payable “ at [24]the Ilion National Bank, Ilion, N. Y.”; and, after so altered, the note was indorsed by Winton and D. M. McDonald, and by them sent to plaintiff in New York, who thereupon loaned to the defendant said sum of two thousand one hundred dollars, without notice of said alteration of the note. The note contained a clause requiring the payment of attorney’s fees in case of suit thereon. All the indorsers of the note were stockholders in the corporation defendant, before and at the time each indorsed the note, but it does not appear how much stock either of them owned.

At the maturity of the note it was presented for payment at the Ilion Bank, New York, and payment demanded, but was not paid; and thereupon was duly protested for nonpayment, of all which due notice was given to the indorsers.