Sarnighausen

Plaintiff sues to recover upon a non-negotiable promissory note transferred and assigned to him by Juliette and Mary E. Burns, to whom the note had been made and executed by the defendants.

Judgment was rendered against defendants Hawk and Martin (service of process not being obtained upon Scannell), from which, and an order denying their motion for a new trial, they prosecute this appeal.

As a defense to the action, Hawk and Martin allege in their answer that at the time of the making and delivery of the note to plaintiff’s assignors the latter did, for the purpose of securing the former to sign the same and for the benefit of said Hawk and Martin, execute and deliver to defendant J. O. Scannell a certain agreement in writing, prepared by defendant Martin, which is as follows:

Upon sufficient evidence the court, in effect, found that while the agreement had been duly executed by Juliette and Mary E. Burns, who retained a duplicate copy thereof, the same was made subsequent to, and was no part of, the transaction involving the loan for which Scannell and appellants made the note herein sued upon; and also found that appellants were not induced to sign the note by reason of the…