Gabbs v. Countryman — 33 Cal. App. 385

Majority

p. 385

[Civ. No. 2044.

First Appellate District.

April 5, 1917.]

MILTON F. GABBS, Respondent, v. R. H. COUNTRYMAN et al., Appellants.

Headnote

Mortgage—Foreclosure—Consideration—Cancellation of Previous Note—Surrender of Pledged Stock.—In an action for the foreclosure of a mortgage given to secure the payment of a promissory note, a finding against the defendant on the issue of want of consideration for the execution of the note and mortgage is supported by evidence of the return to the defendant by the plaintiff of a previous note upon its maturity without payment, together with certain corporate stock pledged as security for its payment.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. A. E. Graupner, Judge.

The facts are stated in the opinion of the court.

Walter M. Willett, and R. H. Countryman, for Appellants.

Chickering & Gregory, for Respondent.

This is a suit to foreclose a mortgage given to secure a promissory note executed by the defendants. Foreclosure was ordered against the mortgaged property, and defendants appeal from the judgment and from an order denying their motion for a new trial.

There is no merit in the first point that the ease was improperly or irregularly transferred from the.department of the superior court to which it was originally assigned to the department of the court in which it was heard and determined.

Equally without force—savoring even of frivolity—are the objections to the rulings of the court on the admission and rejection of evidence.

The defendants in their answer and cross-complaint pleaded that there was no consideration for the execution of the note and mortgage; and they now contend that the finding of the trial court against them on that issue is not sustained by the evidence. This position is not well taken. The record shows that the plaintiff gave to the defendant, R. H. Countryman,

p. 386

the sum of thirteen thousand dollars in consideration for a certain interest in the rentals of two buildings—the Delbert Block and Countryman Building—to be erected on the west side of Van Ness Avenue in San Francisco shortly after the fire in April, 1906. Thereafter plaintiff became dissatisfied with the investment, and sold his interest in said rentals or buildings to said defendant, taking in exchange therefor the latter’s promissory note for $14,072.50, secured by a pledge of forty-two shares of the capital stock of the R. L. Radke Company. The note matured March 26, 1909; nothing was paid upon it, and thereupon the note and the stock pledged as security for its payment were returned to Countryman, and the note and mortgage in suit were executed and delivered to the plaintiff. The consideration, therefore, for this note and mortgage, it is obvious, was the cancellation of the previous note and the return of the pledge, and the consideration for the first note was the relinquishment by plaintiff of any interest in the buildings, and the consideration for his interest in the buildings was the payment by him of the sum of thirteen thousand dollars in cash to Countryman for such interest.

The judgment and order are affirmed.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 4, 1917.