Rottman

This is an action upon a promissory note. From a judgment that he take nothing by the action and that defendant recover costs, plaintiff appeals.

On May 31, 1919, at Calexico, for value received, defendant signed and delivered to plaintiff his promissory note, whereby he promised to pay to plaintiff, or order, “one day after date, without grace, ... at International Bank of Calexico, California,” the sum of $2,522.57, with interest at -the rate of ten per cent annum until paid, together with attorney’s fees equal to ten per cent on the amount unpaid plus $20 if suit should be commenced or other proceedings taken to enforce payment. The note expressly provides that “demand, diligence, protest and notice,” are waived. On December 10, 1919, no part of the principal or interest having been paid, plaintiff commenced this action to recover the principal of the note, interest to the date of the commencement of the action, and attorney’s fees as provided for by the instrument.

The answer attempts to set forth facts showing, in substance, that prior and likewise subsequent to the execution of the note plaintiff, through his agent, orally represented to defendant that the instrument…