Mayo & Brown v. Avery

Citations

• 18 Cal. 309
• 1861 Cal. LEXIS 184

Syllabus

<p>Defendant executed a note to the order of his brother E. M. A., to be used by him for defendant’s benefit in the purchase of goods, and E., the payee, deposited the note -with plaintiffs as collateral security for his own debt, and afterwards paid this debt, or rather novated it, and substituted other security, but failed to take possession of the note: Held, that plaintiffs have no right to the note or its proceeds, because it was by this process redeemed from, the pledge to plaintiffs, and E. had then a right to its possession, and would hold it as agent for defendant; and that this would be true whether the guaranty— “Waiving demand and notice, I hereby guarantee the payment of the within note, value received. Boston, Jan. 29th, 1857. Enoch M. Avery,” endorsed on the note, vested the legal title in plaintiffs or not, or whether the note were overdue or not at the date of such endorsement.</p> <p>Enoch M. Avery is a competent witness for defendant, as the effect of his testimony is to make himself liable on his guaranty, thus rendering his interest adverse to defendant.</p>