73 P. 994 | Cal. | 1903
This is an action on a negotiable promissory note for $1,222, made by defendant, F.W. Swanton, to W.B. Fonville, or order, and dated March 1, 1892. Shortly after the making of the note, and before its maturity, Fonville indorsed and transferred it to the New York Life Insurance Company, and before the commencement of this action the said insurance company transferred it to plaintiff, Muller, merely for collection. The real issues in the case are between defendant and the insurance company. Judgment went in the court below for defendant, and from the judgment, and from an order denying his motion for a new trial plaintiff appeals.
In the answer it is averred as a defense that there was no consideration for the note, and that it was procured by false and fraudulent representations made to defendant by said Fonville, and that the insurance company did not give any consideration for the note, and took it with full knowledge of all the facts. Said averments were found by the court to be true, but we cannot see that these findings of fact are supported by the evidence or how the conclusions of law upon which the judgment rests can be maintained.
Respondent introduced oral evidence, hereinafter referred *252
to, which was objected to by appellant on the ground that it was offered for the unwarranted purpose of changing a written instrument by oral agreement, or showing, by oral evidence, an agreement not to enforce the note. (See Henehan v. Hart,
We need not discuss the subject of legal rights and obligations as between respondent and Fonville, for the insurance company had no knowledge of any transactions in the premises except the policy and the note. The respondent gave Fonville his negotiable promissory note; Fonville indorsed and delivered this negotiable instrument to the insurance company, as he had the right to do, and as, indeed, respondent expected he would do; and the execution and delivery of the policy by the insurance company was ample consideration for the indorsement and delivery of the note to the company by Fonville; if the insured had died while the policy was alive the company would have been liable to the extent of ten thousand dollars. The finding (which is based upon conflicting and very slight evidence) that, after the note was due and its payment demanded, the managing agent at San Francisco told respondent, for the company, that he would look to Fonville for a settlement, and would give respondent no further trouble about the matter, is immaterial; for, in the first place, he had no authority to bind the company by such a promise, and, in the second place, the promise was without any consideration.
The judgment and order appealed from are reversed.
Lorigan, J., and Henshaw, J., concurred. *254