Jefferson

This action was brought by the assignees of a non-negotiable note to recover from the makers the amount alleged to be due thereon. The note was for five thousand dollars, dated July 14, 1888, and payable four months after date, and was given to the Santa Ana, Fair view, and Pacific Railroad Company in payment for fifty shares of stock in that company.

*626 On the first trial judgment was given for the defendants, and the plaintiffs appealed. The judgment was reversed and the cause remanded for a new trial ( 95 Cal. 535 ), the court, among other things, saying:

When the case went back to the court below the defendants filed an amended answer, in which, after making certain denials, they set up two affirmative defenses. In the first of these defenses it is alleged that on July 14,1888, defendants agreed with the Santa Ana, Fairview, and Pacific Railroad Company to take fifty shares of its capital stock, and to deliver to said company their promise in writing to pay therefor the sum of five thousand dollars, and in pursuance thereof did on the same day deliver the note set out in the complaint; but that said agreement to take said stock, and the performance of said written promise,…