Sereen L. Webb delivered to the defendant a represented by $500 in cash and a note for receipt in the words and figures following: $1,167. It follows, then, that the promissory

"Minneapolis, Minn., June 3, 1913. "Received of Mrs. Laura S. Hunt five hundred dollars cash on account of contract of Domestic Utilities Company, same to be used on account of 1,667 washers, also note for $1,167 for came purpose, also note for $2,583, also note for seven hundred fifty ($750) dollars in all, making $5,000.00 for said contract.

"[Signed] Sereen L. Webb."

The defendant claimed below, and she now claims, that the note sued upon was intended as payment for a contract which proved to be valueless, for reasons existing at the time the agreement was entered into, and also because of conditions that arose after that time. It is contended in plaintiff's behalf that the defendant is precluded from making any inquiry as to what the note sued upon was in fact given for, because of a recital in the contract between the defendant and the Domestic Utilities Manufacturing Company as follows:

"Now, therefore, to whom it may concern, be it known that for and in consideration of five thousand dollars ($5,000) this day paid to the 'company,' the receipt of which is hereby acknowledged, the said 'company' has sold unto the 'agent' 1,667 vacuum clothes washers."

note sued upon was given as part payment for a contract which the court found to be without value, and the evidence supports such finding.

There was testimony to the effect that it was impossible to effect sales of the washers under the terms prescribed in the agreement. Also, the company engaged in the manufacture of these goods and their sale under the unusual plan shown by the contract referred to, was compelled, for reasons not clearly appearing in the record, to cease to operate under its contract with the defendant, several months before the maturity of the note in suit. Thus the defendant was prevented from reaping any part of the golden harvest purporting to be provided for her in the "contract."

We pass now to the consideration of the question of whether the record discloses sufficient evidence to sustain the finding of the court that the plaintiff did not purchase the note in suit in course of ordinary business or in good faith.

[3, 4] The circumstances surrounding the transfer of the promissory note from Sereen L. Webb to plaintiff, which took place in the state of Minnesota, are substantially as follows: A day or two before March 21, 1914. the plaintiff, while dining at the home of Mrs. Webb in Minneapolis, was requested

Perusal of the entire contract discloses that it was not intended that the $5,000 payment referred to should be limited to the purchase by his hostess to purchase this note. At that price of 1,667 vacuum clothes washers. On the contrary, it very plainly appears that defendant was purchasing certain presumed rights and privileges separate and distinct from and beyond the 1,667 washers, and which she was led to believe might prove to be very valuable. These rights, in part, consisted of the power conferred upon the defendant to reserve territory in which to exploit the wares of the company, and to sell such wares in unreserved territory; the authority to appoint subagents, the right to sell wholesale lots of washers under prescribed conditions; and also the right to sell washers in lots of 1,667, and rights and privileges identical in terms with those sold to the defendant.

time he had been acquainted with her for several years. They had formerly been coworkers in attempting the resuscitation of a certain mining company which had met with serious difficulties of a financial nature. The plaintiff at the time in March referred to above was conducting a photographic business in Minneapolis. He testified that he could not recall ever before purchasing a promissory note. At the time referred to he was already indebted to Mrs. Webb in the sum of $3,000 for borrowed money evidenced by his promissory note to her dated February 28, 1914. He knew that Mrs. Webb had been interested in the Domestic Utilities Manufacturing Company and had been selling its "contracts" during the summer of Not only was it necessary for the trial 1913. At the time of the indorsement and court to look to the other provisions of the delivery of the note in suit, he was not accontract in order to ascertain the true intent quainted with the defendant, but was inof the parties as expressed in the terms of formed that she was a resident of Los Antheir contract, but it was proper to look be-geles, California. He made no inquiries conyond the instrument itself in order to deter- cerning defendant's financial standing, conmine the real consideration for the payment made by the defendant (section 1962, subd. 2, Code Civ. Proc.; Field v. Austin, 131 Cal. 379, 63 Pac. 692), even though a consideration different than that stated in the written agreement might thereby be discovered. And for the same reason it was proper to determine the consideration paid for the 1,667 washers, found by the court to be $1,667, and

tenting himself upon that subject with Mrs. Webb's statement that the note sued upon was good and that she would become an indorser thereon (which in fact she did), so that the plaintiff would not take any risk whatever in the matter.

The plaintiff further testified that he had not the slightest information as to what the note was given for, and made no inquiries in

(185 P.)

We believe that the foregoing rather extended summarization of the evidence serves to show that the findings of the trial court, to the effect that the plaintiff did not pur

that respect; that Mrs. Webb had stated to him that the reason she requested the plaintiff to purchase the note was that it had been made by a friend who would ask for an extension of time for payment of the note. chase the note sued upon in good faith and Plaintiff knew at the time that Mrs Webb was not desirous of selling the note because of need of money. He testified that he had read law to some extent and knew at the time of transfer "that a negotiable instrument in the hands of an innocent purchaser for value could be enforced, even though in fact not founded upon a consideration, provided the purchaser did not know it."

It may be here added that, subsequent to the maturity of the note sued upon, the plaintiff was informed by Mrs. Webb that she had negotiated the note so as to get it into the hands of an innocent purchaser that a fancied defect in the note might thereby be corrected.

In consideration of the transfer of the note in suit to the plaintiff, he paid to Mrs. Webb $50 in cash, apparently belonging to his wife, but furnished to him for the occasion, and handed Mrs. Webb his own unsecured promissory note for $2,500 payable one year after date without interest.

About the 15th of May, 1914, the plaintiff wrote to defendant that he would expect payment of the $2,583 note when due, to which letter Mrs. Hunt replied in effect that she would not pay the note and that it grew out of a fraudulent transaction. On May 31, 1914, the plaintiff answered defendant's communication, including in his reply the following sentence:

"Am also surprised to learn that if you bought into that Domestic Utilities scheme and lost thereby that you should ever complain of any result therefrom for of all the wild-cat schemes I ever investigated that beats them all."

And also the following:

"You have no legal defense to your note, which is a simple promissory note, when the same passes into the hands of an innocent pur

chaser for a valuable consideration."

in the ordinary course of business, finds ample support in the evidence. It is not for us to determine where the preponderance of the proof is; we need not look further into the record than to discover evidence of a substantial nature which, to a rational mind, may be deemed to support the findings in the behalf stated.

The trial court was the exclusive judge of the credibility of the witnesses at the trial of the action. While the plaintiff disclaimed any knowledge impeaching the integrity of the note in suit at the time it was indorsed and delivered to him, and his testimony was corroborated by the indorser of the note, yet the trial court was under no legal compulsion to accept such testimony as true and thus to exclude all inferences logically to be drawn from other admitted or proven facts. The question of the good faith of the plaintiff and the nature of the transfer as to whether it was made in the usual course of business were questions entirely within the province of the court for determination. We believe we would not be justified in holding as a matter of law, that the evidence is insufficient to support the particular findings referred to. The court was not bound, under the circumstances shown by the evidence, to accept as true the testimony of the plaintiff merely because it was direct and was not directly contradicted. The trial court was duty-bound to consider both the direct and indirect evidence bearing upon the nature of the transfer and what was in the plaintiff's mind at the time, and we are satisfied that it was not amiss in the discharge of that duty. For us to say that the transactions such as passed between Mrs. Webb and the plaintiff must be accepted as related by the parties principal, because not contradicted by direct evidence, would be to put a premium upon perjury and to take from our trial courts means for the discovery of truth, now regarded as trustworthy and essential.

About June 6, 1914, the plaintiff called upon Mrs. Webb, at which time he claims he [5] After the plaintiff had established a learned for the first time the full details of prima facie case, the burden was cast upon the execution of the note sued upon. There the defendant to show that the note in suit was then exhibited to him a letter previously was not founded upon a sufficient considersent to Mrs. Webb by the defendant, dated ation. Such proof having been adduced by March 15, 1914, wherein the defendant dis- the defendant, the burden of showing that claimed responsibility under the note sued he was an innocent holder passed to the upon, basing her denial of liability upon plaintiff. The California cases bearing upon grounds which went to the integrity of the this particular subject hold that a party note in its inception. Mrs. Webb continued situated as was the plaintiff may show that to hold the $2,500 note given her by plaintiff and which was apparently paid on March 15, 1915, by transferring to her certain lots of land. The present action was begun in April, 1915, and at the trial plaintiff's action was dismissed as to Mrs. Webb.

he is an innocent holder by proof that he purchased the note before maturity for value and in the usual course of business, unless the evidence shows that the note was taken under circumstances creating the presumption that he knew or should have known the facts

impeaching its validity. Blochman Commer- | punished for contempt in disobeying order to cial, etc., Bank v. Moretti, 177 Cal. 256, 170 submit to examination and make discovery conPac. 419. cerning property of defendant corporation against which execution had been returned unsatisfied, held sufficient to authorize order to

In the case at bar the plaintiff claims that he met the requirements of the law by showing that he had purchased the note before maturity and in the usual course of business, paying an adequate consideration therefor. The issue as to whether he had purchased the note in good faith and in the usual course of business was decided against him, and it is our conclusion that such finding is supported by the evidence.

The claim is made that, because of the state of the pleadings, the court committed error in receiving in evidence the printed reports of certain decisions of the Supreme

Court of the state of Minnesota, in which
state it will be recalled that the note in suit
and its transfer was made to plaintiff. In
view of the fact that it is our belief that the
judgment should be affirmed under the laws
of either of the states referred to, this ob-
jection becomes of no importance.
The judgment is affirmed.

show cause.

5. PROHIBITION 17-FAILURE TO SEEK RE

LIEF IN COURT BELOW.

Where there has been no effort made to ob

tain relief in the court which it is sought to prohibit, the superior courts will refuse to exercise their jurisdiction by prohibition.

6. PROHIBITION 17-FAILURE TO SEEK RELIEF IN COURT BELOW.

Unless the attention of the court whose proceedings are sought to be stayed has been hibition will not issue. called to the alleged excess of jurisdiction, pro

7. PROHIBITION

11-WILL NOT LIE TO CORRECT ERRORS AND IRREGULARITIES. Prohibition will not lie to correct errors and irregularities occurring in the progress of the cause in the inferior court.

Application by F. C. Drew for a writ of prohibition, prayed to be directed against the

We concur: WASTE, P. J.; RICH- Superior Court of the State of California in ARDS, J.

(43 Cal. App. 651)

DREW v. SUPERIOR COURT IN AND FOR
MENDOCINO COUNTY et al.
(Civ. 2047.)

(District Court of Appeal, Third District, Cal-
ifornia. Oct. 18, 1919. Hearing Denied
by Supreme Court Dec. 15, 1919.)

1. PROHIBITION 17-TO PREVENT PROCEED-
ING IN CONTEMPT; ON OBJECTIONS TO JURIS-

DICTION NOT RAISED BELOW.

and for the County of Mendocino and J. Q. White, judge thereof. Alternative writ discharged.

See, also, 182 Pac. 417.

Metson, Drew & Mackenzie, of San Francisco, for petitioner.

Robert Duncan, of Ukiah, for respondents.

ELLISON, Presiding Judge pro tem. Petition for a writ of prohibition, asking that the superior court of Mendocino county be prevented from hearing or deciding a proceeding instituted in said court against said petitioner for an alleged contempt of court.

was plaintiff and L. E. White Company, a corporation, and Goodyear Redwood Company, a corporation, were defendants, the plaintiff recovered a judgment against the defendants for the sum of $7,150.00, interest and costs.

Where after execution against a corporation of which petitioner was president had been re- The record herein shows that on the 28th turned unsatisfied, petitioner failed in response day of October, 1918, in an action pending to order to appear and testify concerning prop-in said superior court, wherein Phil Lobree erty of the corporation, and superior court on a sufficient affidavit made order to show cause, the appellate court will not grant writ to prevent superior court from proceeding with contempt proceeding on the ground that there is an error in plaintiff's name in the first-mentióned order, and that the original judgment is void for matters dehors the record; matters which were not, but which should have been, called to the attention of the superior court. 2. PROHIBITION 10(1)-GOES ONLY TO JU-judge of said court his affidavit, wherein he RISDICTION.

The writ of prohibition goes only to the jurisdiction of the lower court.

3. CONTEMPT 34 GENERAL JURISDICTION.

On the 4th day of August, 1919, Robert Duncan, attorney for the plaintiff in said action, made and filed and presented to the

stated, in substance the fact of the rendition of said judgment; the issuance of execution thereon, and its return wholly unsatisfied; SUPERIOR COURT HAS that F. C. Drew was then and at all times since the beginning of said action had been the president and general manager of said L. E. White Company; that said company owned property and had it in its possession or under its control, which it unjustly refusAffidavit, asking for order requiring peti-ed to apply to the satisfaction of said judg tioner to show cause why he should not be ment, and that said Drew, as president and

The superior court has general jurisdic'tion to initiate and decide contempt matters. 4. CONTEMPT 54(4)-SUFFICIENCY OF PRE

LIMINARY AFFIDAVIT.

general manager, had property of said cor- of them should not be punished for contempt poration in his possession or under his con- of court in disobeying said order of August trol, which be unjustly refuses to apply to 4, 1919, commanding them to appear before the satisfaction of said judgment; that the said referee. On the 23d day of August. corporation had books of account in the pos- 1919, said F. C. Drew applied to this court session or under the control of said F. C. for a writ prohibiting said superior court Drew, showing properties belonging to said from hearing or deciding said contempt mat corporation, and particularly of the receipt ter. of money from the sale of its properties to the Goodyear Redwood Company and the amounts and disbursements thereof-and prayed that a referee be appointed in San Francisco, and that an order be made, directing said L. E. White Lumber Company, by its president and its general manager and other officers, to appear before said referee at a time and place to be named, and answer concerning the property of said corporation, and produce its books showing the property and moneys belonging to it.

presented to the superior court for consid- | against the original defendant as though he were eration and decision. in default.

[5] "Where there has been no effort made 4. MANDAMUS 187(3)—Failure to bendER to obtain relief in the court which it is sought to prohibit, the superior courts will refuse to exercise their jurisdiction by this extraordinary remedy." High on Extraordinary Legal Remedies, § 733.

3. MANDAMUS 3(12)-REFUSED ON EXIST- Bryan answered the complaint; whereupon