Webster

Defendant appeals from an order of the superior court granting the motion of plaintiff for a new trial. The action was brought upon a promissory note executed by defendant. It was claimed on the part of the defendant that the note had been paid by the assignment of another promissory note owned by defendant. The latter note defendant had delivered to the Bank of Kern with the understanding, as he testified, that it was to be received by said bank in ex-tinguishment of the indebtedness owing by him to plaintiff’s assignor on the note here sued upon, and also in extinguishment of an indebtedness owing by defendant to said bank. Defendant sought to prove that the Bank of Kern, in receiving the note under the alleged agreement mentioned, was acting on its own behalf and also as the agent of plaintiff’s assignor. These matters were controverted by evidence offered on behalf of the plaintiff, and the trial court made its findings in favor of defendant. Subsequently thereto plaintiff gave notice of intention to move for a new trial on various statutory grounds, among them specifying that the evidence was insufficient to justify the decision of the court, and also that she had discovered…