Hellmuth

This is an action on a promissory note. Judgment went for the defendant Marguerite Brandt, and the plaintiff has appealed under section 953a of the Code of Civil Procedure.

In the language of the pleadings the trial court found:

The appellant asserts that the finding that there was a novation is not sustained by the evidence. A reading of her brief discloses the contrary. It is to be unduly liberal to the appellant to say that the evidence is conflicting, for it is not. It is in favor of the respondent. As we understand the appellant, she calls attention to the fact that, according to the agreement as made, the $339 should have been paid immediately and it was not so paid. When it was paid no objection to the delay was interposed, but it was accepted, and ever since has been retained by the appellant. These facts show a waiver of the delay and do not square with any other theory. When the $339 was paid it was done in this manner. The respondent placed a banker’s check in the hands of Mr. Graves, the attorney for David and Katie Boos, with directions to pay the amount as the final payment on the agreement of nova tion mentioned in the third finding. In accordance with those…