Fisher

This is an appeal by the plaintiff from a judgment against him entered upon an order sustaining a demurrer to the complaint without leave to amend.

The action was brought to set aside a judgment rendered against the appellant upon his default. According to the allegations of the complaint, the plaintiff, Charles W. Fisher, and one W. C. Walker were partners in the real estate business. Fisher had confidence and faith in the integrity of Walker, and on November 10, 1915', plaintiff and Walker entered into a contract for the purchase of certain real estate, and for the purpose of furnishing credit to Walker, plaintiff executed and delivered to him his promissory note for three thousand dollars, secured by a mortgage upon real property owned by plaintiff. This transaction did not relate to the partnership business. On March 31, 1919', Walker assigned said note and mortgage to the defendants herein for a valuable consideration. The assignment was not made for the purpose for which the mortgage was executed, but was for Walker’s own benefit, and was made without the consent and against the intention of plaintiff. Thereafter the defendants foreclosed the mortgage, making the present…