Scoble

Plaintiff sued on a promissory note. The cause was tried without a jury and plaintiff had judgment. The appeal is on typewritten transcripts.

The defendant owned properties in San Francisco and Oakland upon which he was erecting buildings. One Wara was a contractor engaged by defendant in connection with the construction who purchased materials from plaintiff. The defendant believed he owed Wara the amount of the note, but in fact owed him nothing. Wara was indebted to plaintiff in excess of the amount of the note and, at his request, defendant gave the note in suit to plaintiff upon the express understanding that the amount would be credited to Wara’s account when paid. A few days after the delivery of the note the defendant discovered his mistake and so notified plaintiff. Thereafter plaintiff extended further credit to Wara far in excess of the amount of the note. This indebtedness had been paid in full by Wara, but the latter refused to pay plaintiff the amount of the note and appeared as a witness for plaintiff in an endeavor to hold defendant upon the note notwithstanding the mistake which is conceded by all parties. The defendant had previously guaranteed in writing a…