O'Conor

This is an action upon a non-negotiable promissory note for thirteen hundred and eight dol *33 lars and ninety-five cents, bearing interest at the rate of one per cent per month, compounding monthly.

The case was tried by the court without a jury and the findings were in substance as follows: On October 31, 1890, the defendants, E. W. Morse, C. E. Heath, and J. H. Braly, executed and delivered the said note to one F. W. Stewart, to be used as collateral security for his own note, to be given to the Consolidated National Bank of San Diego. Thereafter, Stewart executed his own non-negotiable note for the same sum to the said bank, and as collateral security for the payment thereof duly indorsed, assigned and delivered to the bank the said note. On the day of its date defendant Braly paid on said note one-third of the amount due thereon, to wit: Four hundred and thirty-six dollars and thirty-two cents. The interest on the note was paid up to October 30, 1891, but no other payments on account of interest or principal were ever made.

On May 11,1893, the bank was still the owner and holder of the said note. On that day the defendant Braly, through his duly authorized agent, J. C.…