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attorney and the deed to the plaintiff, the latter being a grant, bargain, and sale deed, reciting a consideration. This made a prima facie case, and is sufficient to support the verdict in the absence of evidence sufficient to overcome it. For the purpose of sustaining the deed against the attack of defendants, evidence was introduced tending to show that Origin held two promissory notes made by Sylvester, one for five hundred dollars and the other for four thousand dollars, and that Sylvester was indebted to Origin for other moneys; and these notes were produced upon the trial bearing an indorsement "paid, July 21, 1877," that being the date of the deed; that Sylvester at or about the time of the transaction admitted his said indebtedness, and said he had, or would, convey the property to Origin in payment of his debt, and, as to the delivery of the deeds, the evidence tends to show that after the deeds were signed and acknowledged they came to the hands of Sylvester, who examined them, and himself delivered the deed of the forty acres to plaintiff's brother, and left the deed for plaintiff, who was absent, with Origin to be delivered, and a few days thereafter asked plaintiff if he had received his deed. Whilst the course here pursued is not to be commended, we think the evidence sufficient to justify the jury in finding that there was a sale by Sylvester for a good consideration, and that the deed was in fact delivered by Sylvester to the plaintiff. The case of Videau v. Griffin, 21 Cal. 390, cited by appellant, is not in point. There, there was no authority in writing given to the person who executed the deed as attorney in fact. The acknowledgment by the grantor did not cure the defect.

If in this case there was no sale by Sylvester, the transaction was outside and beyond the power, and in such case Videau v. Griffin, 21 Cal. 390, would apply; but as there was evidence from which the jury might find a sale for a valuable consideration, the transaction was within the power, the only objection being that the agent who made the purchase and paid the considera

tion himself executed the deed; but this we think was ratified by the principal by his personal delivery of it.

The court did not err in receiving said promissory notes in evidence. It is true the indorsements thereon that they were paid did not of themselves show that they were in any way connected with the conveyance of the land, but the plaintiff testified that Sylvester told him that he owed Origin "some money on notes, and that these deeds were in payment." This evidence, and the indorsement of payment coinciding with the date of the deed, sufficiently tended to show their connection with the transaction to justify their admission in evidence.

The views we have expressed are in harmony with the instructions given to the jury, to which appellants excepted, so far as they relate to the conveyance of the premises to the plaintiff, and the instructions requested by appellant which were refused, being inconsistent therewith, were properly refused.

Whether the court erred in striking out the testimony of Laura A. Mowry is immaterial, as that was directed to the mental incapacity of Sylvester Mowry, and no question is made here as to the fact of his capacity to make the conveyance.

We have examined all the questions presented by appellant, but find no error which would justify a reversal.

The judgment and order appealed from are affirmed.

Hearing in Bank denied.

[No. 18196. In Bank.-June 28, 1894.]

WILLIAM S. KENDALL, RESPONDENT, v. J. A. PARKER ET AL., DEFENDANTS, J. F. HILL, APPEL

LANT.

NON-NEGOTIABLE NOTE-STIPULATION FOR ATTORNEY'S FEE. —A note con. taining a stipulation for an attorney's fee, in case of suit thereon, is not negotiable.

ID. DEFINITION OF PROMISSORY NOTE-CONTINGENT ADDITIONS.-A promissory note is a written engagement to pay absolutely and unconditionally a certain sum of money, whether the note be negotiable or non-negotiable; and an instrument is not a promissory note when there are contingent additions thereto.

ID. INDORSEMENT IN BLANK-LIABILITY OF INDORSER TO SECOND INDORSER. When the payee of a non-negotiable note, having a stipulation for an attorney's fee, in case of suit, transfers the same by simply indorsing it in blank, he does not become liable as an indorser to the indorsee of his indorsee.

ID. CONDITIONAL GUARANTY.-Independently of statute law there is no custom or rule of law which can add a conditional guaranty of pay. ment to the assignment in blank of a non-negotiable note.

APPEAL from a judgment of the Superior Court of Sacramento County.

The facts are stated in the opinion of the court.

L. T. Hatfield, for Appellant.

The instrument sued on is not an unconditional promise to pay a certain amount of money, and is therefore not a negotiable promissory note. (Civ. Code, sec. 3088, 3093; Adams v. Seaman, 82 Cal. 637; First Nat. Bank v. Falkenhan, 94 Cal. 141.) Section 1459 of the Civil Code, so far as this case is concerned, simply authorizes the transfer of the contract, the provisions for the protection of the maker having no application in this action by the indorsee of an indorsee against the original payee. (First Nat. Bank v. Falkenhan, 94 Cal. 145.) A mere contract of sale, or agreement to sell, does not imply a warranty. (Civ. Code, sec. 1764; Sutro v. Rhodes, 92 Cal. 123, 124; First Nat. Bank v. Falkenhan, 94 Cal. 144; James v. Yaeger, 86 Cal. 187,

188.) No rule of law is better settled than that an indorsee of choses in action, or non-negotiable instruments, or the indorsee of an indorsee, cannot recover from any one but his immediate indorser, and then only in cases clearly within the doctrine of the Civil Code, section 1774. (Addison on Contracts, 8th ed., appendix, 251; Woods v. North, 84 Pa. St. 407; 24 Am. Rep 201; Johnston v. Speer, 92 Pa. St. 227; 37 Am. Rep. 675.) Any contract for the payment of money represents an indebtedness, and the assignment of it, if non-negotiable, simply transfers the title to the debt, but nothing more. (Civ. Code, sec. 1459; First Nat. Bank v. Falkenhan, 94 Cal. 145.)

Johnson, Johnson & Johnson, for Respondent.

The transfer of a non-negotiable instrument is some thing more than a mere contract of sale, and the rules applicable to negotiable paper, to some extent, apply to such assignment. (First Nat. Bank v. Falkenhan, 94 Cal. 141.) Although at common law the plaintiff could not sue the defendant Hill, because there was no privity between them, yet equity has always recognized the rights of subsequent indorsees of non-negotiable notes. (Story on Promissory Notes, sec. 128; Randolph on Commercial Paper, sec. 1.) An indorsement in blank of a non-negotiable instrument by the payee thereof, subjects him to even greater liability than in indorsement to order or to a particular person. (Richards v. Warring, 1 Keyes, 576; Wareham Bank v. Lincoln, 3 Allen, 192; Codwise v. Gleason, 3 Day, 12; Story on Bills, sec. 202; Chitty on Pleading, 183, 226; 2 Parsons on Bills and Notes, 119; Poorman v. Mills, 35 Cal. 121; 95 Am. Dec. 90; Story on Promissory Notes, 165.)

The COURT.-This is an appeal from a judgment entered after appellant's demurrer had been overruled, appellant standing upon his demurrer.

The complaint is upon a promissory note which is non-negotiable, because it contains a stipulation for an

attorney's fee. Suit is brought by the assignee of the first assignee against the makers and the payee as indorser.

The complaint avers that Hill assigned the note by writing his name upon the back thereof, and by delivering the same to the Huntington-Hopkins Company before the maturity of the note.

The Huntington-Hopkins Company, upon the maturity of the note, presented the same to the makers, and demanded payment thereof. The said makers refused and failed to pay the same or any part thereof, of which demand and failure due notice was given to the defendant Hill. The note was transferred to plaintiff by the Huntington-Hopkins Company, without recourse and after maturity.

The complaint was demurred to on several grounds, all, however, founded upon the proposition that the complaint fails to show any liability on the part of Hill.

Plaintiff had judgment, not only for the debt which the note was given to secure, but for one hundred dollars, attorney's fee. The stipulation in regard to an attorney's fee in the note is: "And in case suit is instituted to collect this note, or any portion thereof, we, or either of us, promise to pay such additional sum as the court may adjudge reasonable as attorney's fees in said suit."

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The question here presented is, whether, when the payee of a non-negotiable note transfers the same by a simple indorsement in blank, he becomes liable as the indorser of a negotiable note would, not only to his immediate indorsee, but to the indorsee of his indorsee, the second indorsement being also in blank; or, as in this case, "without recourse."

It was held in England, prior to the statute of 3 and 4 Anne, that by the custom of merchants, when the payee indorsed his name upon a negotiable note, intending thereby to transfer it, the indorsee was at liberty to

CIII. CAL.-21

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