Perkins v. Eckert

Thornton, J.: The plaintiffs brought this action as partners on the 29th of January, 1878, to recover from the defendant the amount purporting to be due on a promissory note for $1,000, bearing date on the 21st day of September, 1880, payable in one day after date, and on alleged indebtedness of $3,439.80, balance due on account for goods, wares, merchandise, etc.

The defendant by answer admitted the execution of the note, but denied that it was due when suit was commenced.

Defendant further pleaded that on the 17th day of November, 1877, there was due to plaintiffs a balance of account amounting to $3,424.50, the amount due on the account having been reduced to the sum above mentioned by payment made before the 17th of November, 1877; that on the day last named, the defendant on payment of this balance executed to plaintiffs his promissory note for the amount of such balance, and that this note was accepted by plaintiffs in full payment and satisfaction of the balance due on the account above mentioned. The answer of defendant further states, that afterward, on the same day, defendant at plaintiffs’ request executed to them a bill of sale, of which the following is a copy:

“ Oroville, November 18th, 1877.

This is to certify that I have this day sold to Perkins, Logan & Co. 5,257} sacks of wheat, weighing 697,930 pounds. This wheat is stored in the warehouse of the Grangers’ Union of San Joaquin Valley, at Stockton, California. This sale is subject to my indebtedness at this date to the Stockton Savings Bank, as per my note in their possession. ITiram Eckert.

“Witness: Milton J. Green.”

The answer then proceeded to state that in consideration of the execution of this bill of sale to the plaintiffs, the plaintiffs agreed to assume and pay, and did assume and pay, all of defendant’s “ indebtedness to the said Stockton Savings and Loan Society, as per his said note then in its possession”; that plaintiffs further agreed to consider paid and discharged all accounts and demands against defendant, especially the balance of account above mentioned and the note executed by defendant for and on account of such balance, and certain other promissory notes [402]then owned and held by plaintiffs against defendant, and that plaintiffs did thereupon deliver the notes to defendant.

Defendant then proceeded to set up a counter-claim for the sum of $368 for services rendered plaintiffs, and as a cross-complaint averred that on the 25th day of November, 1876, he exe7 cuted to the plaintiffs a chattel mortgage on the crop of wheat, barley, and hay growing upon a parcel of land in the County of Butte, to secure the payment by defendant to plaintiffs of the sum of $7,128.65 on the 29th of May, 1877, with interest, according to the true intent and meaning of a promissory note executed by the defendant to plaintiffs, dated 29th of November, 1876, and due six months after date, for the sum above mentioned, with interest, etc., and such advances as should be made by plaintiffs to defendant during the continuance of the mortgage; that by the terms of the said mortgage the defendant agreed to carefully tend and protect these crops while growing and until fit for harvest, and then faithfully and without delay harvest, thrash, clean, and sack the same, and deliver them immediately into the possession of the plaintiffs, to be held and disposed of by them for payment of the debts secured.