Sayre

This is an appeal by plaintiff from, a an denying a motion for a new trial. The main history of the case is stated in the opinion of this court upon a former appeal (Montgomery v. Sayre, 91 Cal. 206 ); and it need not be repeated here.

The first question in the case is whether or not Sayre, deceased, made the ten thousand dollar promissory note to appellant sued on as surety for W. S. Chapman. Respondent contends that this question was decided affirmatively by this court on the former appeal, and that such decision is the law of the case. This court did say in its opinion on that appeal that “ Sayre was, in law, a surety”; but we will not inquire into the somewhat complicated question whether that statement was necessary to the determination of that appeal, and therefore the law of the case; because we think that the correctness of that statement otherwise appears. Indeed it appears from the complaint itself," which includes the presentation of the claim to the executor.

It is not pretended in the complaint that the Sayre note for ten thousand dollars was not given as security in some form, or that an action could be maintained upon it as on any ordinary promissory note, without…