Risley

Action upon a promissory note, executed by the defendant Gray to the defendant Stevens.

*41 Tlie plaintiff’s title to the note was derived by a purchase thereof after its maturity at a sheriff’s sale under an execution issued upon a judgment against Stevens. The note had been executed by Gray in part-payment for the purchase of an interest in a mine in Fresno County. At the time of the purchase and execution of the note, Stevens represented to Gray that the value of the ore in the mine was enough when worked out to meet the amount of the purchase-price and notes given therefor, and the purchase by Gray and the execution of the note was made in reliance upon these representations. Upon working the mine it proved to be of no value, and thereupon Gray and Stevens mutually agreed to a surrender of the note and cancellation of its obligation; but the note itself was left with Stevens, and was not in fact delivered to Gray. This agreement was after the maturity of the note and prior to the purchase by the plaintiff at the sheriff’s sale.

The defendant, Gray, in his answer alleged that the only consideration for the note was the purchase of this interest in the mine, and that he made…