Martin v. Hildebrand

SHAW, J.

The defendants appeal from the judgment. The plaintiff’s complaint states a cause of action in favor of the plaintiff for the foreclosure of a mortgage on certain land executed by the defendants Hildebrand and Lettich to the Humboldt Savings Bank to secure the payment of a note of three thousand dollars dated December 26, 1912, due December 26, 1914, and bearing interest at six per cent per annum payable monthly in advance and compounded monthly if not paid when due. The mortgage was assigned to the plaintiff by an instrument dated February 5, 1916, which was delivered to the plaintiff on July 27, 1916.

. The defendant’s answer alleged that on August 9, 1916, the defendants Hildebrand and Lettich offered to the plaintiff the sum of $3,146.60 and demanded of plaintiff the return and cancellation of said note and mortgage and a satisfaction thereof, which offer the plaintiff refused, and that defendants have ever since been ready, willing, and able to pay said sum of money in discharge of said note and mortgage.

The court found “that on August 9, 1916, the defendants, Hildebrand and Lettich, offered to plaintiff in gold coin, the sum of $3,146.50, and demanded from plaintiff an assignment of said note and mortgage”; that said defendants did not then state whether the offer was on their own behalf as junior mortgagees, or as owners, or as agents for the owner of the real property, and that the plaintiff rejected

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said offer because it was insufficient in manner and in the amount offered.

A motion for a new trial was made on the general ground of the “insufficiency of the evidence to justify the decision.” The appeal is supported' by a bill of exceptions which contains no specifications of the particulars wherein the evidence is insufficient.

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Consequently “the question of sufficiency of the evidence to sustain the findings cannot be considered.”

(Millar

v.

Millar,

175 Cal. 799, [Ann. Cas. 1918E, 184, L. R. A. 1918B, 415, 167 Pac. 394];