Riegel v. Wollenshlager

WELLER, J.

The complaint seeks the foreclosure of a mortgage given to secure the payment of a note' for the sum of $20,000, dated August 1, 1914, due in three years, with interest at the rate of seven per cent per annum from date, payable quarterly, and if not so paid, to be compounded.

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The answer alleges that the only consideration received by defendants for the execution of the note was $19,400, and that the consideration for the note in any greater sum has wholly failed. As a further defense, defendants allege that under the provisions of section 1917 of the Civil Code plaintiff is not entitled to interest prior to the maturity of the note, and that there had been paid prior to the commencement of the suit the sum of $3,150, which should be credited on the $19,400, and judgment entered for the principal sum of $16,250, with interest from the date the note fell due by its terms. By way of counterclaim, defendants aver that, they borrowed the sum of $19,400 and executed their note for $20,000; that they have paid $3,150, which should be offset against the $19,400 borrowed; and pray that $3,950 shall be deduetéd from the amount found due on the note. There is nothing to show how appellants arrive at the figure $3,950.

The court found that the note was" executed for $20,000 and interest, as alleged, and secured by the mortgage set out in the complaint; that the sum of $3,198.96, and no more, had been paid; that the full amount of the principal, with interest as provided in the note, less thp sum so credited, was due from the defendants; and ordered a decree accordingly.

Appellants specify three points upon which they rely: (1) That the court failed to find on material issues; (2) error in refusing to admit testimony regarding the amount of the consideration for the note; and (3) mistake in date from which interest should be computed.

1. It is contended that the court should have made specific findings upon the issues presented as to the alleged partial failure of consideration, and as to the payment of $3,150 on the principal of the note, as set forth in the so-called counterclaim. The allegation in the answer which forms the basis of this contention is both ambiguous and insufficient. It avers that the only consideration for the execution of the note was $19,400, which is $600 less than the principal sum mentioned, or, in other words, that there was no consideration to the extent of $600. In the same sentence it is alleged that the consideration failed to the extent of the same sum of $600. These averments are not sufficient to tender an issue. If plaintiff loaned defendants $19,400, it was a sufficient consideration for the note for $20,000, in