Banta v. Wise

SMITH, C.

This is a suit for an accounting, the plaintiff alleging a balance in his favor of about four thousand dollars. This, with other allegations, is denied by the defendants, who claim, in their answer, a balance in their favor of $3,135.20. There is also a cross-complaint, which sets up a deed of the plaintiff and wife to the defendant Wise, of date March 22, 1894, purporting to convey to the grantee the land described, but claimed by the defendants to be a mortgage given to secure indebtedness to Christy & Wise, and contemplated advances. Judgment was rendered in favor of the defendants named for the sum of $1,350, and for the foreclosure of the mortgage, as prayed for. From which and from the order denying his motion for a new trial the plaintiff appeals.

The accounts between the parties (which extend over a period of nearly five years) have their origin in an agreement between the plaintiff and the defendant John Wise, of date April 10,- 1891, by the terms of which there was delivered to the plaintiff by Wise sixteen hundred sheep, to be kept on shares by the former for the period of five years, or such less period as the latter might determine, the plaintiff to receive from the grade sheep one half (subsequently changed to two thirds) of the wool and increase, and from the thoroughbreds, one third, etc. This contract was terminated in August, 1895, the plaintiff turning over to Wise’s agent 3,185 sheep, and the latter agreeing to pay him thereafter fifty-five dollars per month, for the services of himself and son in herding them, which arrangement continued until December, 1895, when it was discontinued. From the beginning of the transaction the wool was, with the concurrence of the parties, consigned to Christy & Wise, by whom all sales and advances were made, and with whom all accounts were kept. An account was rendered by them, February 29, 1896, which was introduced in evidence by the plaintiff, and to which, on the trial, all objections were waived by him, except as to certain items charged against the plaintiff and certain omitted credits claimed by him. These, by stipulation, were left to the determination of the court. The court found that, on a just and true accounting, there was due to the defendants the sum of $1,350; and

[279]

also that the deed of the plaintiff and wife was a mortgage, as alleged in the cross-complaint.