Frace v. Brown

Chipman, C. This is an action upon a promissory note dated December 15, 1888, due thirty days after date, executed and delivered by one A. A. Bonney to defendant, and by him indorsed to plaintiff on February 5,1889. Plaintiff alleges that the note was indorsed by defendant, after the same had been dishonored by nonpayment, and for a good and sufficient consideration; that at that time defendant waived all presentation of the note to said Bonney for payment and also notice of nonpayment. This alleged waiver is founded upon certain facts set forth in the complaint, the substance of which is that plaintiff loaned the money, for which the note was given, to defendant to assist the maker of the note, who, it is alleged, was defendant’s partner in business, and by defendant’s direction plaintiff paid the money (two thousand dollars) to Bonney, who then resided at Dalles, Oregon, where the note was executed. The alleged agreement between plaintiff and defendant appears to have been made at the town of Rio Vista, Solano county, where they then resided. The complaint is verified. Defendant denies specifically the al[326]legations of plaintiff’s complaint, and sets ont that the money was in fact loaned by plaintiff to Bonney, and was sent to him by plaintiff; that defendant’s connection with the loan was only that he had told plaintiff to whom he could loan the money, and suggested Bonney; that after the loan was made, Bonney did not send the note promptly, and plaintiff requested defendant to write Bonney; that defendant did so, and shortly afterward the note came to defendant and was drawn payable to his order, and that thereupon, and without any consideration, defendant indorsed the note to plaintiff. The note bore date about the time the money was received by Bonney.

The case was tried by the court and judgment given for defendant. The appeal is from the judgment and from the order denying plaintiff’s motion for a new trial. I find in the transcript the opinion of the trial judge, in which he says: “The testimony of the two principal witnesses, Frace (plaintiff) and Brown (defendant), was diametrically opposed to each other. From Frace’s statement, if it be true, he would certainly be entitled to recover the amount sued for; and it is certain Brown received no benefit from the transaction whatever, and he tells an entirely different story as to the transaction and as to the loaning of the money to Bonney, and it is a story that is reasonable, while there is nothing unreasonable about the Frace story, but the court must determine between the parties”; and the learned judge thereupon, in view of all the circumstances and facts, ordered judgment for defendant.