Buttner

The appellant gave to the respondent the

following agreement:

This indorsement was made at the Garden City Bank, in San Jose, which at the same time held one hundred and seventy shares of the stock in pledge for an indebtedness of the appellant, and where the respondent also had some money on deposit. After the above transaction, Buttner told Smith that *629 he had some money to his credit at that bank, and, upon Smith’s statement, in reply to Buttner’s suggestion, that if he would let him have the money it would help him to get that stock, Buttner let him have $3,100. About ten days after this time, Smith saw Buttner, and told him he could not get the stock from McCoy; and about two weeks later Smith again went to Buttner, and proposed a change in the contract, by which Buttner could get the stock in some other way. This, however, was declined by Buttner. Smith failed to get the stock from McCoy, and, in August, Buttner demanded that he pay back the $3,100, and, upon his refusal, brought this suit. The case was tried before a jury, and a verdict rendered in favor of the plaintiff. From the judgment entered thereon, and from an order denying a new trial, the defendant has…