Hotle

This is an appeal from the judgment in favor of plaintiff and against defendant in an action on a promissory note.

The defendant does not deny that he executed and delivered the note to plaintiff’s assignor, one S. J. Norris, as alleged in the complaint, but he sets forth in his answer a counterclaim for a certain amount. The court found against this defense; and the sole question presented by the record is as to whether or not the evidence supports that finding.

After the making of the note and before its maturity Norris, the payee thereof, and the defendant borrowed from the First National Bank of Oroville one thousand dollars, giving the bank their joint note for that sum, the proceeds by agreement being placed to the personal account of Norris. At the time of this transaction defendant and Norris had entered into a tentative agreement concerning some development work of the Feather River Canal Company’s property, under the terms of which Hotle was to make certain monthly advances. This agreement was subsequently reduced to writing and signed by the parties. According to the testimony of Hotle the money borrowed from the bank was for the personal account of Norris, and when…