Neylan v. Green

Hayne, C. This was an action to foreclose a mortgage given to the firm of Neylan & Young by the defendant Abram F. Green to secure the payment of a promissory note for the sum of nine hundred dollars. The answer, among other things,'puts in issue the- allegation of non-payment of the note. The court found that it had been paid, and rendered judgment for the defendants. The plaintiff appeals from an order denying his motion for a new trial.

[129]The general features of the case are as follows: The defendant Abram F. Green was a settler on the public lands, and was in the habit of taking lumber, bark, “shakes,” etc., from the tract, and selling it to the firm Dingwall & Waldo, in Santa Cruz, and getting supplies, etc., in return. Dingwall & Waldo were in the habit of shipping the stuff which they received from Green and from other parties to the firm of Neylan & Young of San Francisco, who sold it on commission, and placed the proceeds to the account of Dingwall & Waldo, who drew against it as occasion required, and frequently their account was overdrawn. While their account was so overdrawn, the defendant Abram F. Green applied to them for $133.12, which he needed to make the last payment upon the tract upon which he had settled. They could not let him have the money, but went with him to San Francisco, where a transaction was concluded, by which Neylan & Young supplied the $133.12 to make the payment on Green’s land, and he gave to them the note and mortgage in suit. The clearest account of what occurred is given by Levi K. Green, the brother of Abram F. Green. He says: “ My brother, Abram F. Green, wanted $133 to pay for the land, but he could not get it, unless he gave them security for what they owed Neylan & Young. The $900 was made up of the $700 due from Dingwall & Waldo, the $133 that Abram F. Green got., and the expenses in going to the city and making out the note and mortgage.” This account is confirmed by the testimony of Dingwall, by that of the plaintiff himself, and by that of Waldo, although the latter witness seems to have had very confused notions of the legal effect of the transaction, and gave testimony which is contradictory and unintelligible in many respects.

There can be no doubt that Abram F. Green received only $133.12. And he did not receive this sum from Neylan & Young, but from Dingwall & Waldo, to whom [130]