Plaintiff sued on a promissory note. He had judgment against both defendants and Sawano alone appeals on typewritten transcripts.
The due execution of the note is admitted, Sawano and the corporation being joint makers. The consideration was money admitted to have been given the corporation and used in the business of the corporation in which Sawano was a heavy stockholder. The defense to the action was that the note had been paid by the acceptance of two other notes executed by the corporation alone.
[1] The trial court found against defendants on this special defense and on this appeal the appellant insists that this finding is not supported by the evidence. The appellant offered testimony of a number of witnesses tending to show that in January, 1926, the plaintiff delivered the note in suit to the corporation and took in lieu thereof two other notes executed by the corporation alone. In rebuttal the *Page 612 plaintiff offered as a witness one of the members of a "committee" which conducted the transactions at that time on behalf of defendants. From his testimony it appears that the corporation was financially embarrassed and that, in order to obtain accommodations from the bank it was necessary to make it appear that the note in suit was not outstanding; that, for this purpose, the committee persuaded plaintiff to deliver the note to this witness temporarily and to accept two other notes of the corporation made payable at a future date. The note in suit was delivered to the witness with the express understanding that it should be returned to plaintiff and that appellant's obligation should not be released. The witness then testified that he took the note from plaintiff under these conditions and later returned it to him. The note was received in evidence and bore no mark of cancellation or payment. From its judgment we must assume that the trial court rejected the conflicting testimony as unreasonable or improbable.
[2] During the course of the trial the plaintiff voluntarily dismissed the action as to the corporation and then discovered that as the note in suit was joint it was necessary to have the corporation as a party defendant. Its motion to restore the corporation as a defendant was granted over the objection of Sawano, but without objection from the corporation. As the corporation was a necessary party the court was authorized to order it brought in. (Sec. 389, Code Civ. Proc.) As there is no objection by the corporation as to the time or the manner in which this was done the order is not reviewable on this appeal.
Judgment affirmed.
Sturtevant, J., and Spence, J., concurred. *Page 613