Kingsbury v. Whitacre

HAHN, J., pro tem. Kate Saathoff, one of the defendants in the above-entitled action, which was upon a promissory note bearing her indorsement, alone appeals from a [101]judgment rendered against her and her co-defendants, who were the makers of the note.

From the record it appears that on or about January 25, 1927, James E. Whitacre, one of the defendants, executed his promissory note in the sum of $5,200, payable to Harry Jenkins and wife, secured by a trust deed on certain real property. In due course thereafter, the note was indorsed to appellant, who in turn assigned and indorsed the note to one Marjorie E. Wehrly by a writing on the back of the note, which reads as follows:

“Los Angeles, Cal., Dec. 1, 1927.

“For value received, I hereby grant and assign to Marjorie E. Wehrly the within note together with all rights accrued or to accrue under the deed of trust securing the same, so far as the same relate to this note, and waive presentment, demand, notice, protest and notice of protest.

“Kate Saathoff.”

Marjorie E. Wehrly later indorsed the note and delivered it with the trust deed to respondent. The property covered by the trust deed was subject to the lien of a prior trust deed, which as a senior lien was foreclosed and the property bid in for the amount of the first lien indebtedness. Whereupon respondent filed suit on the $5,2'00 note against the original makers and the several subsequent indorsers, alleging in her complaint that the security had been sold to satisfy a senior lien, thus rendering it valueless as a security for the payment of the note sued upon. When the case was called for trial, counsel for appellant made the following statement to the court: “There are only two questions open in this case which we desire to submit to the court, "the one is upon the question as to payments made upon said note, concerning which we have no evidence to offer. The other question is as to the effect of the form of endorsement which the defendant Kate Saathoff executed as same appears upon the back of said promissory note. We contend that under that form of endorsement the defendant Kate Saathoff would not be responsible upon said note to the plaintiff.”

The question of the payments on the notes was by the court determined in favor of plaintiffs. No point is made on this appeal as to the correctness of the court’s ruling