JOSEPH SPIELBERGER, Respondent, v. CALIFORNIA THOMPSON, Appellant, 131 Cal. 55

GAROUTTE, J. Plaintiff, as assignee, brings this action upon a promissory note against the maker thereof. Its execution and delivery are admitted, but various defenses to its payment are made. These defenses will be considered. 1. It is claimed that plaintiff was not the holder of the note, either when the action was brought or the trial had, and for this reason a nonsuit should have been granted. Under the facts disclosed by the record, there is nothing in the point. Before the note was assigned to plaintiff it was placed in the hands of C. W. Clarke as collateral security.

The indebtedness for which the note was held as security was paid by plaintiff’s assignor, and, under instructions from the defendant, Clarke refused to return the note to him. But, beyond this, defendant alleges in her answer that Clarke held the note as her trustee. If the note was in the possession of her trustee, it was in her possession, and she is foreclosed by her allegation in the answer from successfully urging a nonsuit upon the ground that plaintiff was not the holder of the note at the time of the trial. 2. It is claimed that the note was given without consideration.

Let us pause for a moment and look at the facts. The Oppenheims were engaged in litigation regarding certain trust property; some were plaintiffs, others were defendants, still others cross-complainants. The payee and assignor of the note was a son. The drawer and defendant was a daughter. All parties litigant appeared to be anxious to bring the litigation to an amicable conclusion. Plaintiff’s attorney in the litigation would not consent to a dismissal Of the actions until his fee was paid; and his objection to a dismissal was a formidable bar in the way, looking toward the accomplishment of the desired end.

The evidence at this point is somewhat conflicting as between the assignor of the note and the defendant; but upon this evidence the court found against the defendant’s testimony, and we are only concerned in testing the sufficiency of the evidence to support the aforesaid finding. In substance, the payee of the note testified that he told defendant he had no money with' which to pay the fee of plaintiff’s attorney, and she then said: “If I would dismiss the case she would give me a note for fifteen hundred dollars to pay the fee of Mr. Johnson, and would pay the note when she got her money from the estate.

The note was given to me in consideration of the dismissal of the cases pending at the time. I immediately took numerous steps and tried numerous times by my attorneys to dismiss the action.” It further appeared that the plaintiff’s assignor paid the attorney his fee, and some time thereafter the action was dismissed. The dismissal was delayed for some months after the execution of the note, but this delay was largely occasioned by defendant herself. It was essentially a question of fact as to the intention of these two parties, respectively, in the making and receiving the note in controversy.

There is no question of actual fraud involved in its procurement. It is not shown but that the attorney was in fact objecting to the dismissal of the action until his fee was paid. And there is no claim that he ever objected to its dismissal after the note was given. From all these facts and circumstances the finding of a sufficient consideration for the giving of the note will be upheld. 3. We find nothing in the offered and rejected documentary evidence which demands a new trial. We do not see that it had any substantial bearing upon the issues of fact under examination.

For the foregoing reasons the judgment and order are affirmed. Van Dyke, J., and Harrison, J., concurred. Hearing in Bank denied. Beatty, C. J., dissented from the order denying a hearing in Bank, and filed the following opinion on the 19th of January, 1901: