Neumann v. Moretti

Action to Cancel Instruments—Note and Mortgage as Security for Lease—Eviction—Damages to Lessee—Demurrer for Misjoinder.—In an action brought jointly by a lessee and by one who executed a note and mortgage as security for the performance of the lease by the lessee, to cancel the note, mortgage, and lease, for eviction of the lessee by the lessor, and for damages for the eviction of the lessee, where the judgment was in favor of the lessor defendant, the lessor’s demurrer for a misjoinder of parties plaintiff and of causes of action, which was overruled, need not be passed upon on appeal by the plaintiffs, though it does not appear that the lessee has any interest in the cancellation of the note and mortgage, nor -that the mortgagor has aiiy interest in the damages suffered for eviction by the lessee. i

Id.—Joint Demurrer to Answer—Denials—Counterclaim.—Where the answer of the lessor denied most of the allegations of the complaint, and pleaded a counterclaim for unpaid dairy products agreed by the lessee to be purchased from the lessor for use in a creamery on the leased premises, and the plaintiffs joined in a general demurrer to the answer, the demurrer was properly overruled if the answer stated a defense or counterclaim against either of the plaintiffs.

Id.—Findings not Sustained as to Mortgagor—Security for Performance of Lease—Independent Contract for Dairy Products. —Findings that the note and mortgage which were given to secure the performance of the lease were also given as security for the sum that might become due for supplies furnished to the lessee by the lessor, and that the agreement for such supplies was part and parcel of the agreement to lease, and constituted one contract with it, were against the evidjence, where the lease contained no mention of any contract for supplies, and the mortgage contained nothing to show that it was given as security for anything other than the lease, and the defeasance signed by the defendant provided for a surrender of the note and mortgage if the lessee faithfully performed the conditions of the lease, and where the independent agreement for the dairy products only purported to bind the lessee individually to pay for them, and did not allude to the mortgage, and there is no evidence to show that the mortgagor requested the furnishing of aqy dairy products to the lessee.

Id.—Eight of Mortgagor to Findings.—The mortgagor, as between the lessor and the lessee, is entitled to findings as to whether or not anything is due by the lessee to the lessor upon the covenants of the lease as therein expressed, and if anything is due, as to what is the amount thereof.

Id.—Appeal by Mortgagor—Eeview of Order Denying New Trial.— Where the mortgagor alone appealed from an order denying a new trial, and no such appeal was ¡taken by the lessee, the sufficiency of the evidence to sustain the' findings can only be considered as respects the mortgagor, and he is entitled to a reversal where the findings against him are unsupported.