Muller

This is an appeal by the plaintiff from a judgment in favor of defendant F. W. Swanton, and from an order denying plaintiff’s motion for a new trial. A former judgment in the same action in favor of said defendant was reversed by the supreme court. (Muller v. Swanton, 140 Cal. 249 , [ 73 Pac. 994 ].) The action is on a promissory note for $1,222, which was executed by the defendant to W. B. Fonville and indorsed by Fonville to the New York Life Insurance Company and by it in turn indorsed to the plaintiff merely for the purpose of collection. The answer does not deny the due execution of the note, nor that it was indorsed to the insurance company prior to maturity, but sets forth that there was no consideration for the note, that it was obtained by fraud, that the insurance company gave no consideration for the note and took it with notice of the circumstances under which it was made.

The facts are these: W. B. Fonville was sent to this state by the home office of the New York Life Insurance Company to solicit insurance independently of the local office, of which the general manager was one A. G. Hawes. In carrying out this object Fonville called on the defendant in Santa Cruz…