Heron v. Bray

YORK, J.

This is an action to recover on three promis sory notes executed by defendant. The answer alleged that the third note was given in full payment and discharge of the first note, and that the second and third notes had been fully paid, and set up as an affirmative defense the fact of payment by defendant of the sum of $2,200 to one Kellogg, the original payee of the notes, which (defendant alleged) was accepted by plaintiff in full settlement, satisfaction and discharge of the causes of action sued upon.

Upon trial of the cause, the court found against the defendant upon all issues, except that the court gave to defendant credit for said sum of $2,200 as a payment on account. The original findings referring to this payment are:

“V.

“The court further finds that during the month of December, 1928, the defendant paid to the plaintiff herein the sum of $2,200.00 to apply upon the notes sued on in this action, and that defendant is entitled to a credit in the amount of $2,200.00, together with interest from the 20th day of December, 1928, at the rate of seven (7%) per cent per annum to the 22nd day of July, 1929.

“VI.

“The court further finds that during the month of December, 1928, the defendant paid to plaintiff, by then and there

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paying to F. R. Kellogg, the sum of $2,200.00; but the court finds that the payment was not made by defendant and/or accepted by plaintiff as full settlement, satisfaction and/or discharge of the causes of action sued for herein. . . . and the court further finds that the said sum of $2,200.00 was paid upon account of the said notes and not in full payment, accord and satisfaction thereof. ’ ’

On July 31, 1929, after the filing of said findings, judgment was entered, and on August 26, 1929, after due notice given, defendant’s motion for a new trial was heard and submitted. On September 24, 1929, an order was made and entered, ordering, adjudging and decreeing that paragraph V of the findings be amended to read as follows:

“The court further finds that on the 20th day of December, 1928, the defendant paid to F. R. Kellogg for the benefit of the plaintiff herein the sum of $2,200.00 to apply upon the notes sued on in this action, and that defendant is entitled to a credit in the amount of $2,200.00, together with interest from the 20th day of December, 1928, at the rate of seven (7%) per cent per annum to the 22nd day of July, 1929.”