Daneri

Action on a promissory note executed by John B. Gazzola in his lifetime as principal, and defendants as sureties, and delivered to plaintiff's intestate as payee. Defendant Cuneo died before service of summons, and his representative was not made a party. The action was originally commenced in the name of John Daneri, but before the trial he died, and plaintiff was substituted in his stead. Defendant John B. Gazzola died pending an appeal to the supreme court from the judgment given at the first trial, and by supplemental complaint his administrator was substituted in his stead. At the first trial the court sustained a demurrer to certain defenses interposed by answer of defendants. This was held error and a new trial ordered. ( 139 Cal. 416 , [ 73 P. 179 ].) At the second trial plaintiff had judgment, from which, and from the order denying their motion for new trial, defendants appeal. The principal defense made and now urged is that plaintiff's intestate had, before his death, conveyed all his property, including the note in question, to his wife, Angella, and that the administrator could not maintain the action, as the note lid not belong to the estate, but was the property of…

In the application to have the evidence re-examined our attention is called to certain facts which were not mentioned in the opinion. But they do not change *Page 359 the fact, found by the court on sufficient evidence, that the deed was not completed nor delivered in the lifetime of deceased, Daneri. Whatever claim the widow had to the note, or the chose in action (the suit on the note at Daneri's death), came through the deed. The testimony of Frank Daneri that his father told Murphy he wished his mother to have all the property was no doubt true, but that is precisely what Murphy undertook to bring about by the deed conveying all the property, but failed. Mrs. Daneri testified that all the property belonged to her "and family." But it was because it was supposed that the deed conveyed the property that she claimed it. At the same time she testified that she knew nothing about the note. It is true, also, that the members of the family supposed that the property had been deeded, and it is true that the validity of the deed was not questioned until after Murphy's death. There was evidence that Ambrose Daneri had acted as his mother's agent, and had received rent for the land and…