in this case, the contract fixes the place of delivery, and the demand should fix the time of it.

If, then, the allegation concerning the demand is indefinite as to the time when it was made and the time thereby appointed for the delivery, as to render the precise nature of the charge" uncertain, the defendant's remedy is not by special demurrer, but by motion under Section 84 of the Code of Civil Procedure, to make the complaint more definite and certain in this respect.

Nor do I think the undertakings of either of the parties of this contract are conditions precedent within the purview of Section 86 of the Code of Civil Procedure, which authorizes the performance of such conditions to be pleaded by stating generally that the party duly performed all the conditions on his part.

And particularly is this the case as to the demand, the one undertaking which comes nearer being a condition precedent than any other to be performed by the plaintiffs. For the contract being silent as to the time when or within which the demand was to be made, any averment of performance of this condition which did not state "the facts" of such performance would be open to the objection of indefiniteness and uncertainty. But even in the case of a contract with stipulations which are conditions precedent, a general averment of performance of such stipulations can only be sufficient where the mode and time of performance is substantially detailed in the contract, and not left to the judgment or discretion of the party bound to perform.

The demurrer is overruled.

TUESDAY, May 15.

Supreme Court of California.

DEPARTMENT No. 1.

[Filed May 11, 1883.]

No. 8151.

ODD FELLOWS' SAVINGS BANK v. BIRD.

By the COURT:

On the authority of Leese v. Clarke, 29 Cal. 672, order affirmed.

DEPARTMENT No. 1.

[Filed May 8, 1883.]
No. 7817.

BANK OF SONOMA, RESPONDENT,

v.

GOVE & STUART, DEFENDANTS, (GOVE, APPELLANT.) PROMISSORY NOTE-NEGOTIABLE PAPER-ACCOMMODATION-MAKER. Gove made his note to defendant, Stuart, who indorsed it, before maturity, to the National Gold Bank. The bank discounted the note in the regular course of its business. After maturity the bank, for valuable consideration, transferred the note to Steele. Subsequently Gove, the maker, paid to Steele one-half the sum then due upon the note, claiming that as between himself and Stuart the instrument was an accommodation, and each was liable to the other for one-half only. Steele refused to recognize the alleged claim, but consented to receive the sum paid as a partial payment, and such sum was indorsed as a payment in the usual manner. Afterward Steele transferred the same for value to the plaintiff. As between themselves there was an agreement between Gove and Stuart that each should pay one-half the note, but of this neither the National Gold Bank, Steele nor plaintiff had notice when they respectively bought the note. Stuart had been discharged from his debts under the insolvent law after this action was commenced, and judgment went against Gove for the balance due on the note. Held, the judgment was proper.

ID.-ID. It is a settled principle that if the party who transferred the instrument to the holder acquired the note before maturity and was himself unaffected by any infirmity in it, the holder acquires as good a title as he held, although it were overdue and dishonored at the time of the transfer.

ID.-ID. In this case it is not necessary to express an opinion on the point as ruled in England, where it is well established that the general. rule that the purchaser of overdue paper can stand in no better position than his transferrer, does not apply so far as to invalidate bills and notes drawn, indorsed, or accepted for accommodation, overdue at the time they were negotiated or transferred, it being considered that parties to accommodation-paper hold themselves out to the public, by their signature, to be bound to every person who shall take the same for value, the same as if it were paid to themselves. And the fact that the purchaser knew that the paper was so drawn, indorsed, or accepted for accommodation, does not weaken his position.

Appeal from Superior Court, San Francisco.

C. V. Gray for appellant.

A. W. Thompson for respondent.

MCKINSTRY, J., delivered the opinion of the Court:

The appellant, Gove, made his promissory note for $800 to defendant, Stuart, who indorsed it, before maturity, to the National Gold Bank and Trust Company. The bank discounted the note in the regular course of its business. After maturity, the bank, for a valuable consideration, transferred

the note to E. W. Steele. Subsequently Gove, the maker, paid to Steele one-half the sum then due upon the note, claiming that as between himself and Stuart the instrument was an accommodation, and each was liable to the other for one-half only. Steele refused to recognize the alleged claim, but consented to receive the sum paid as a partial payment, and such sum was indorsed as a payment in the usual manner. Afterward Steele transferred the same for value to the plaintiff.

As between themselves there was an agreement between Gove and Stuart that each should pay one-half the note, but of this neither the National Bank, Steele, nor the plaintiff had notice when they respectively bought the note.

This action was commenced August 30, 1877. Defendant Stuart was discharged from his debts, under the insolvent law, June 27, 1879, and judgment went for him in the Court below. That Court gave judgment in favor of the plaintiff for the balance due against the appellant, Gove.

Upon this state of facts, it is contended by appellant the judgment should be reversed, because plaintiff was chargeable with notice that the note was an accommodation note, and that the maker had paid all he was liable to pay to Steele. Appellant relies upon the proposition laid down in Vinton v. Crowe, 4 Cal. 309, and approved in Hayward v. Stearns, 39 Cal. 58. In the first of these cases the proposition is thus stated: "A negotiable note, taken by the holder after its maturity, is taken subject to all subsisting equities between the maker and payee, but not such as subsisted between the maker and any intermediate holder."

The facts in Vinton v. Crowe are not reported, but in Hayward v. Stearns the defense relied upon the fact that while the note remained in the hands of Turner, who took after it was overdue, the latter became indebted to the maker in a sum greater than the amount of the note. There can be no doubt the law was properly applied in that case, and it must be supposed that the facts in Vinton v. Crowe were analogous. At all events, the general language employed by the Court is not to be interpreted as establishing that every indorsee, who takes a negotiable instrument after maturity, is bound by the equities subsisting between the payor and payee; if, indeed, the fact that, as in the case before us, the note was made for the mutual accommodation of the original parties can be considered as an equity within the meaning of the rule.

"It is a settled principle that if the party who transferred the instrument to the holder acquired the note before ma

turity, and was himself unaffected by any infirmity in it, the holder acquires as good a title as he held, although it were. overdue and dishonored at the time of the transfer." (Daniel on Negotiable Instruments, Section 726, citing many American cases; Chitty on Bills, 13th Am. Ed. 250; 9 Exch. 690.)

Here the note was discounted by the National Bank before it became due, without notice of the agreement between the original parties.

In England it is well established that the general rule that the purchaser of overdue paper can stand in no better position than his transferrer, does not apply so far as to invalidate bills and notes drawn, indorsed, or accepted for accommodation, overdue at the time they are negotiated or transferred, it being considered that parties to accommodation-paper hold themselves out to the public by their signatures, to be bound to every person who shall take the same for value, the same as it were paid to themselves. And the fact that the purchaser knew that the paper was so drawn, indorsed, or accepted for accommodation does not weaken his position. (Ibid.) But, inasmuch as the decisions in the United States do not uniformly follow the English rule, and as the facts of the case at bar do not demand a decision of the question, we express no opinion with respect to this last point. Judgment and order affirmed.

I concur: Ross, J.

I concur in the judgment: McKee, J.

DEPARTMENT No. 2.

[Filed May 9, 1883.]
No. 8086.

TRENOUTH, APPELLANT,

v.

GORDON ET AL., RESPONDENTS.

EJECTMENT EVIDENCE. The defendants in ejectment had been in possession ten years, claiming under deeds. There was no evidence to show that the plaintiff or his grantors were ever in possession; nor any evidence to show that the father of the grantors was ever in possession of any portion or parcel of land, and no evidence to show that the grantors had ever been in possession after their father's death. Held, that defendants could defeat plaintiff's right to recover by proving that the persons holding the legal title had conveyed it to third persons without connecting themselves with that legal title.

Appeal from Superior Court, San Francisco.

J. B. Townsend for appellant.

Houghton & Reynolds and Cobb for respondents.

MYRICK, J.:

This is an action of ejectment. Plaintiff alleges possession and ownership in himself on the 1st of July, 1874, and an ouster on that day by defendants.

Plaintiff's claim of title is, in substance, as follows: One Antonino Buelna was the owner of a Mexican grant for four leagues. He died testate, leaving surviving him a widow. His will devised the four-league grant, to each of five persons an undivided one-fifth, his widow being one of the five. Another of the five was one Juan Bautista Buelna, who died leaving two children. Plaintiff claims title as grantee of these two children. The widow of Antonino executed to Salvador Castro a deed of one league of land, who presented to the United States Land Commission a petition to have the same confirmed to him. The land was so confirmed, and a patent was issued in 1861. The widow presented a petition for the confirmation to her of the other three leagues, which was granted, and a patent issued in 1861. In the proceedings before the Land Commission the petitioners claimed to be the owners, respectively, of the lands petitioned for.

Each of the defendants had been in the possession of the tract claimed by him for ten years before the suit was commenced, under deeds, claiming ownership.

There is no evidence that either plaintiff or his grantors, the children of Juan Bautista Buelna, were ever in possession of any of the premises in controversy-nor is there any evidence that the father of the grantors was ever in possession of any particular parcel of the land. He lived on the land in 1844-but on what portion, or how much he occupied, if any, does not appear; for aught that appears he may have been a tenant of the claimant. His children were there in 1844; one was born that year, and one the year before. He died in 1846-where, does not appear. The children had no interest prior to the death of their father; and there is no evidence that they have been on the land or in possession since that event. Under such circumstances it was competent for the defendants to defeat the plaintiff's right to recover (even if he otherwise would have had the right), by proving that the person holding the legal title had conveyed the same to third persons without connecting themselves with that legal title.

Judgment and order affirmed.

We concur: Thornton, J., Sharpstein, J.