Ewing v. Smith

PULLEN, J.,

pro tem.

The facts of this case are substantially set forth in respondent’s brief, as follows:

The action arises out of the failure of defendants to repay money loaned them by plaintiff. Two causes of action are set forth in the complaint. ‘ In the first one it is alleged that plaintiff loaned to the defendants the sum of $4,000, that to evidence the indebtedness defendants executed to her their promissory note for this amount bearing interest at seven per cent per annum and that nothing has been paid thereon. In the second cause of action it is alleged that plaintiff advanced to defendants the sum of $500 which defendants failed to repay. The answer admits the execution of the note but denies that it provided for interest; and admits the payment of the $500 to defendants but alleges that it was a gift and not a loan. As a special defense it is alleged in the answer that prior to the commencement of the action the note was by agreement between the parties canceled and destroyed in partial liquidation of an indebtedness in excess of $5,000 due from plaintiff to defendants. By way of counterclaim defendants allege that at the time of the commencement of the action plaintiff was indebted to them in the sum of $5,818.96 upon a mutual, open and current

account;

and in their second counterclaim they allege

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that this amount was due them for services rendered and money advanced to plaintiff. The court found for plaintiff according to the allegations of the first cause of action of the complaint, but as to the second cause of action, found that the $500 sought tov be recovered by plaintiff was a gift and not a loan. The court also found against defendants on their special defenses and counterclaims. From the part of the judgment in favor of plaintiff, defendants have taken this appeal. No questions of law are involved in this appeal and the only question to be decided by this court is whether the findings are supported by the evidence.

Appellants contend that there is no evidence to support the finding that the destruction of the note was without the consent of plaintiff or the intention on her part that the indebtedness thereby represented should be canceled.