Bockwich v. Garlow

BURROUGHS, J.,

pro tem.

This is an action by the administrator of the estate of Prank B. Morris, deceased, to foreclose a mortgage. The decree of foreclosure was regularly entered, and the defendant George A. Garlow has appealed therefrom.

The only question presented for the consideration of the court is the sufficiency of the evidence to support the court’s finding of fact: “That it is not true that the defendant, George A. Garlow, paid the principal sum of $1500.00 or accrued interest from November 1, 1928, to the said Frank B. Morris, on or about the 18th day of April, 1929, or otherwise, and nothing has been paid on account of said promissory note except the said sum of $1000.00 and the interest to November 1, 1928.’’

In support of the action plaintiff produced and introduced in evidence a promissory note in the principal sum of $2,500, and a real estate mortgage securing the same. Both were signed “George A. Garlow’’, and were made in favor of

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Frank B. Morris. The execution of both instruments by the plaintiff was admitted. The payment of the sum of $1,000 on the principal thereof, together with interest on the whole sum to May 1, 1928, was admitted by the plaintiff, who thereupon rested his case.

The appellant testified in his own behalf that he paid Frank B. Morris the balance of $1500 due on said note, with the accrued interest then due, in cash on April 18, 1929, three days before the death of Mr. Morris. He detailed the circumstances of the payment as follows: “Mr. Morris was down there visiting my son and his wife. My son lives on the same block with me. When he came home, he came in to see me, through the back door, the kitchen door. I was washing dishes in the kitchen. When I got through we went in the dining room and I went and paid him. I said, ‘Morris, I intended to pay you on the first of May and' I have cash and I will pay you,’ and I paid him. He said in a day or two he would lay off from his labor and have the mortgage released and returned. I made a notation of that on the old receipt, and he accepted it. Mr. Morris was very peculiar about writing any papers. He was a very peculiar man. He was a very ignorant man and did not understand business matters. He said, ‘Why not put it on the old receipt?’ So I went and got the old receipt and put it on the old receipt. Q. Did you write it on the old receipt in his presence? A. Yes, I did.”