On the sale of an automobile by respondent to one Kelly, the latter executed a conditional sales agreement, together with a note. Respondent assigned the agreement and note to appellant, containing a guarantee of performance and payment. To an action brought for unpaid balance of the purchase price, respondent filed specification of defenses, including payment and an express agreement that, notwithstanding the guaranty, the transaction was without recourse to, or liability against, the respondent. The conditional sales agreement listed the installments and dates of payment, and added "which installments * * * are evidenced by a promissory note (not as payment, but as evidence of the amounts to become due hereunder) made by the buyer to the order of the seller, bearing date hereof, and maturing on the due dates of said respective installments." In response to a notice, the note was produced at the trial, but the attorney for the plaintiff declined to let defendant's counsel see its reverse side, and although he had exhibited the note to a witness and questioned him about it, refused to offer the note in evidence, and was sustained by the trial court. Held, that under the defenses set up, and in view of the use made of the note by plaintiff's attorney, this action was erroneous, especially as the note was said to have on the reverse side the words "without recourse," and beneath these words the name of appellant.
PER CURIAM.
The judgment under review will be affirmed, for the reasons expressed in the opinion filed in the Supreme Court.
For affirmance — THE CHANCELLOR, PARKER, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 12.
For reversal — None.