
    [S. F. No. 2388.
    Department Two.
    January 15, 1901.]
    JAMES W. FINDLAY, Respondent, v. FRED S. POTT and PAUL P. AUSTIN, Appellants.
    Promissory Notes—Negotiability—Stipulation for Attorneys’ Fees— Defenses Against Assignor.—Promissory notes containing in each a stipulation for attorneys’ fees in case of suit thereupon are not negotiable, and are subject in the hands of an assignee to defenses against the assignor.
    Id.—Defense of Fraud—Failure of Consideration — Omissions in Findings.—Judgment and order reversed for omission to find upon material issues of fraud and failure of consideration of the notes in suit, presented by the answer, upon the authority of Field v. Austin, ante, p. 379.
    APPEAL from a judgment of the Superior Court of Santa Clara County and from an order denying a new trial. M. H. Hyland, Judge.
    The facts are stated in the opinion.
    John E. Richards, John G. Jury, and James H. Campbell, for Appellants.
    Jackson Hatch, and H. C. Moore, for Respondent.
   SMITH, C.

This action was brought by plaintiff, as assignee of Field, to recover ten thousand dollars alleged to be due on four promissory notes, executed in pursuance of the contract involved in Field v. Austin, ante, p. 379, just decided, and belonging to the same series as the notes sued on in that ease. The notes all contain stipulations for attorneys’ fees in case of suit, and are, therefore, non-negotiable. (First Nat. Bank v. Babcock, 94 Cal. 96; First Nat. Bank v. Falkenhan, 94 Cal. 141; Adams v. Seaman, 82 Cal. 636; Chase v. Whitmore, 68 Cal 545; Civ. Code, secs. 3087, 3093.) Otherwise the case is similar to Field v. Austin, ante, p. 379; and on the authority of that case the judgment and order denying a new trial should he reversed.

Gray, C., and Chipman, C., concurred.

For the reasons given in the foregoing opinion the judgment and order denying a new trial are reversed.

Temple, J., Henshaw, J., McFarland, J. 
      
       28 Am. St. Rep. 94.
     