Lavers

The facts are that defendant and one Brown executed a promissory note in favor of a bank. On maturity, and after the refusal of defendant Jones to pay the note, it was paid by Brown. Thereupon the bank assigned to Brown all its interest in the note, which in turn Brown assigned to plaintiff. From a judgment in favor of plaintiff, defendant appeals.

The complaint contained two causes of action. By the first, in substance the facts hereinbefore set forth were alleged. By the second, in addition to such facts, plaintiff alleged that on the date when Brown paid the note defendant became indebted to him “for money paid out and received for the use and benefit of the defendant at his special instance and request in the sum of $1,027.79 and for which amount said defendant agreed to pay.”

As to the first cause of action, appellant’s contention that as the note was paid by Brown, the obligation was discharged and consequently that no recovery on the note could be had by Brown or his assignee as against the comaker of the note, finds support in the cases of Yule v. Bishop, 133 Cal. 574 [ 62 Pac. 68 , 65 Pac. 1094 ], and McDonough v. Nowlin, 17 Cal. App. 45 [ 118 Pac. 463 ]. However, in…