property" upon defendant, as required by section 386 of the Code of Civil Procedure. Cunningham was not put to his answer by either party, and so far as we can see the case stands as though Cunningham at no time had anything whatever to do with the matter and was wholly ignorant of what plaintiff had done. The question, then, is, Could plaintiff recall his deposit, and would the payment of the money to him by defendant discharge the latter from all liability? We think the answer must be in the affirmative. The bank became the agent of plaintiff to do a particular act (Civ. Code, secs. 2295, 2297); and the principal (plaintiff) could terminate the agency at any time before the act was performed and before any rights of third persons had intervened; the agency was terminated by its revocation. (Civ. Code, sec. 2356.) The evidence was that the condition on which the particular act was to have been performed never happened, and that the only third person who by any possibility was concerned in the matter is not shown to have acquired any rights or to have been in any way interested in the subject of the agency. Upon revocation of the agency by plaintiff the burden was on defendant to show that other claim was made upon the deposit, and in this defendant failed and plaintiff was entitled to have the money paid to him.

Respondent's point that the notice of appeal from the judgment was not made within six months after entry of judg ment and that such appeal cannot be considered, is well taken (Code Civ. Proc. sec. 939); and this court cannot, therefore, direct a judgment to be entered for plaintiff if it were so disposed. Plaintiff gave notice of a motion to vacate the judgment and enter another and different judgment, and correct the conclusions of law filed in the action, under sections 663 and 6631⁄2 of the Code of Civil Procedure. This notice was separate from the notice of motion for a new trial. The motion for a new trial was heard and denied, but the motion to vacate the judgment and correct the conclusions of law seems not to have been made, nor was any order entered on such a motion. We assume that appellant does not rely on this motion.

It was

No question is raised, however, as to the consideration of the motion for a new trial, and we will raise none. specified in the notice that the evidence was insufficient to

As

justify the decision and that the decision is against law. suming that the evidence supports the findings, still it must follow from what has been already said that the order denying a new trial should be reversed.

Gray, C., and Haynes, C., concurred.

For the reasons given in the foregoing opinion the order is reversed and the cause remanded for a new trial.

McFarland, J., Temple, J., Henshaw, J.

Hearing in Bank denied.

[L. A. No. 735. Department One.-January 9, 1901.]

SECURITY LOAN AND TRUST COMPANY, etc., Respondent, v. LENA B. MATTERN and LUKE D. BECHTEL, Appellants.

FORECLOSURE-SEPARATE MORTGAGES FOR SAME INDEBTEDNESS-SINGLE CAUSE OF ACTION-PLEADING-COUNTS-MISJOINDER.-A cause of action to foreclose two separate mortgages made by two different defendants to secure the same indebtedness is single; and the fact that the two mortgages are unnecessarily set forth in what are called the first and second counts of the complaint does not show a misjoinder of distinct causes of action.

ID. DIFFERENT RELIEF-CHARACTER OF

COMPLAINT-MISNOMER.—A

complaint, while setting forth a single cause of action, may at the same time ask for different relief from different defendants, according as they are connected with the cause of action; and the character of the complaint is to be determined from its contents, rather than from a misnomer on the part of the pleader.

ID. SUBSEQUENT MORTGAGE BY ANOTHER AS ADDITIONAL SECURITY— PARTIES TO FORECLOSURE.-In an action to foreclose a mortgage, another person than the original mortgagor, who is averred to have executed a subsequent mortgage, as additional security for the payment of the same debt secured by the prior mortgage, is properly made defendant, in order to secure to the plaintiff the payment of any deficiency that may arise upon foreclosure of the prior mortgage.

ID.-STATEMENT OF OBLIGATION-CERTAINTY.-The statement in the subsequent mortgage that it was given as security for the pay

ment of a promissory note, according to its terms, made on a specified date by the prior mortgagor to the plaintiff, and secured by mortgage of the same date, giving its date and place of record, is a sufficiently definite description of the obligation for which the subsequent mortgage was given.

ID. REFERENCE TO RECORD-MISDESCRIPTION OF INSTRUMENT EVIDENCING DEBT-SUBSEQUENT MORTGAGE NOT INVALIDATED.-The subsequent mortgage is not invalidated because the instrument to which it refers as a promissory note set forth in the public record of the prior mortgage is not strictly a promissory note within the definition of the Civil Code; but the subsequent mortgagee is presumed to have known its character, and any misdescription of it will not affect his obligation or relieve him therefrom.

ID. PROMISE TO PAY PRINCIPAL AND INTEREST COUPONS-PLEADING— UNCERTAINTY.-Where the complaint sets forth at length the in strument secured, showing it to be described by its terms as a "first mortgage real estate note," and to consist of a written promise to pay on a date specified a principal sum named to the plaintiff or order, with interest at a specified rate, according to the tenor and effect of twelve interest coupons of two series, of six coupons each, therein described, the designation of the instrument as a promissory note is immaterial; and no uncertainty is created by setting forth in the complaint at length a copy of one of each series of the coupons.

ID. CONSIDERATION OF SUBSEQUENT MORTGAGE-RELEASE OF LAND FROM PRIOR MORTGAGE.-Proof that the subsequent mortgage was executed in order to obtain the release by the mortgagor of part of the land included in the prior mortgage, and that the release and the subsequent mortgage were placed together in escrow until the property mortgaged was shown to be unencumbered, and that they were contemporaneously recorded, establishes a sufficient considera. tion for the subsequent mortgage.

ID. PLEADING-WANT

OF

CONSIDERATION-EVIDENCE-REBUTTAL.— Where the maker of the subsequent mortgage pleaded in his answer a want of consideration therefor, and testified thereto, evidence is admissible in rebuttal to establish the consideration thereof, and it cannot be objected that such rebutting evidence is not within the pleadings.

ID.-EFFECT OF RELEASE-UNTENABLE OBJECTIONS.-The release having been obtained in consideration of the subsequent mortgage, and with the consent of all parties interested, neither of the mortgagors can object that the release operated to absolve him from liability, or that the foreclosure of the prior mortgage is for part only of the property originally mortgaged.

ID. PERSONAL GUARANTY OF PRIOR MORTGAGE-FORECLOSURE OF SUBSEQUENT MORTGAGE-Defense. The personal guaranty by a third person of the obligation of the prior mortgagor is not available as a defense to a foreclosure of the subsequent mortgage.

ID. CONVEYANCE OF FIRST MORTGAGED PREMISES TO SECOND MORTGAGOR. -The conveyance of the premises covered by the first mortgage to the mortgagor who executed the subsequent mortgage, though dated prior to the commencement of the action, if not delivered or recorded until after its commencement, is not available as a defense to the action. ID.-ATTORNEYS' FEES NOT MADE A LIEN.-The second mortgagor cannot object to the allowance of attorneys' fees against the first mortgagor if they are not made a lien upon the land, and no property is directed to be sold in satisfaction thereof.

ID.-FIXING FEES WITHOUT EVIDENCE.-The court may fix the amount of the attorneys' fees without receiving any evidence upon the subject.

APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. Walter Van Dyke, Judge.

The complaint alleged: "That on or about the first day of March, 1895, defendant Lena D. Mattern duly made, executed, and delivered to the plaintiff herein her certain promissory note, in words and figures the following, to wit: "$3500.00. First Mortgage Real Estate Note. No. 892.

"On the first day of March, A. D. eighteen hundred and ninety-eight, for value received I promise to pay Security Loan and Trust Company of Southern California, or order, the sum of thirty-five hundred dollars, and interest thereon from date until maturity at the rate of ten and one-half per cent per annum, payable semi-annually, according to the tenor and effect hereof, and of twelve interest coupons, comprising two series of six coupons each; interest at the rate of six per cent on this note being evidenced by six interest coupons, numbered from one to six inclusive, each for one hundred and five dollars, hereto attached and composing and designated as the first series; and interest at the rate of four and one-half per cent, being evidenced by six interest coupons, each for seventy-eight dollars and seventy-five cents, composing and designated as the second series, bearing even date herewith and detached herefrom, payable at like times and in like manner as said first series of coupons. Principal and interest payable in United States gold coin of the present standard of weight and fineness, at office of said Security Loan and Trust Co., in Los Angeles, California, with New York exchange.

"The interest coupons of either series shall, after (their) maturity (and the principal shall, after its maturity), bear interest at the rate of ten and one-half per cent per annum, compounded semi-annually, and if any interest coupon of either series is not paid at maturity, or in case of failure to comply with any of the requirements of the mortgage given by the maker hereof to secure payment of this note, the principal and accrued interest shall become due and collectible at once, or at any time thereafter during such delinquency, without notice, at the option of the holder of this note. This indebtedness is secured by a mortgage, duly recorded, which is a first lien on the property therein described.

“Dated at Los Angeles, California, this first day of March, 1895. LENA B. MATTERN."

The complaint further set forth a copy of one of each of the two series of coupons, showing each one payable to bearer at the office of the plaintiff, and alleged that the mortgage was executed by said defendant, Lena B. Mattern "to secure the payment of the said promissory note, principal, and interest as provided in said promissory note and the said interest coupons," etc. Further facts are stated in the opinion of the court.

Dunnigan & Dunnigan, and Luke D. Bechtel, for Appel

lants.

Miller & Brown, for Respondent.

HARRISON, J.-The appellant, Lena B. Mattern, executed to the respondent a mortgage bearing date March 1, 1895, upon certain land in the county of Los Angeles, to secure payment of the sum of three thousand five hundred dollars, according to the terms of a promissory note therefor executed by her to the plaintiff at the same time, with certain coupons for interest therein specified and described. The mortgage was recorded March 18, 1895. In August, 1897, the mortgagee executed, at the request of Mrs. Mattern, a release of a portion of the mortgaged land, and at the same time, in consideration thereof, the appellant Bechtel executed to the respondent a mortgage upon certain other property to secure the payment of the note executed by Mrs. Mattern. The release bears date June 24, 1897, and the mortgage of