White

The defendants appeal from an order denying their motion for a new trial and from the judgment. The complaint is based upon two promissory notes dated May 17, 1911, due respectively five and six months after date, and each being for the principal sum of $749.41, with interest. These notes were executed by Standard Lumber Wrecking Company and made payable to the Westport Lumber Company or order, and through subsequent assignments became the property of the plaintiff. The defendants by their answer alleged that the first note was fully paid, and denied "that no part of the principal or interest on the second note has been paid, except the interest credited thereon as shown by the complaint," and denied that the said principal sum and interest, as stated in the complaint, is wholly due and unpaid. The plaintiff was the only witness at the trial of the case. On cross-examination he said: "I received the following order which was given as in payment of these notes: 'Los Angeles, Cal., Oct. 18th, 1912. Mr. C. W. Rogers, City. Dear Sir: Please pay to the order of Mr. Deitrich, of the firm of Haas Dunnigan, the sum of one thousand dollars ($1000.00) and charge to my account. Yours truly,…

A decision was filed herein on February 11, 1916. At that time, in stating our conclusion that the complaint failed to state a cause of action against the defendants Wilcox, Moran, and Lynn, our attention was directed to the form of guaranty and waiver on the back of the notes, as to which we found that the complaint did not allege the execution of any such guaranty or waiver. We overlooked the fact that within the notes themselves it was stated that "the makers and indorsers of this note hereby waive diligence, demand, protest, and notice." That language being contained in the notes, the indorsement by said defendants on the back of each note constituted a waiver without any separate statement thereof. (Daniel on Negotiable Instruments, 6th ed., sec. 1092.) The decision of this court herein is hereby modified by striking therefrom the final paragraph, which was as follows: "It appearing that the judgment against Standard Lumber Wrecking Company is for an excessive amount and that no cause of action was stated against the other defendants, it is ordered that the judgment and order be and they hereby are reversed." In lieu thereof we substitute the following: "It appearing that the…