White v. Whitney

Gibson, C. This was an action to foreclose a mortgage given to secure payment of a one-year note, dated November 3, 1880, for $450, with interest at the rate of one and one half per cent per month of thirty days, payable at maturity of note, and if not so paid, to become part of the principal and draw like interest.

The defendant, in his answer, in addition to a general denial, set up that he executed the note and mortgage solely in consideration of the promise of plaintiff to pay him the amount of the note; that plaintiff only paid him $250 of the amount, and refused to pay the remainder. And as a counterclaim he averred that plaintiff was indebted to him in the sum of $1,831.69 as a balance due on an account for goods, etc., money paid out to plaintiff’s use, and for labor, all furnished, done, and performed at the request of plaintiff.

The case was tried by the court, without a jury, upon all the issues except one, which was submitted to a jury in the following stipulated form:—

“ Is the plaintiff indebted to the defendant upon the counterclaim set up in defendant’s answer; and if so, how much?” To which the jury responded: “Yes; one thousand dollars.”

This special verdict was approved and adopted by the court as a finding upon the issue so framed; and upon the other issues it found that the defendant was indebted to the plaintiff, upon the note in suit, in the sum of $909.90, and the sum of $50 for counsel fees for foreclosing the mortgage; and that there was abalance due from plaintiff to defendant of $40.10. Judgment was entered accordingly; from which, and from an order denying a new trial, plaintiff appeals.

The following are the only errors assigned in the statement: 1. That the verdict is not sustained by the evidence; 2. That the admission in evidence of the shop-book of defendant in his own behalf was erroneous.

The -evidence is brief. At the time the note and [165]mortgage were executed, the defendant testified that he received $250, and made the note for $450, because the plaintiff gave him a letter of credit to a firm at San Francisco for whatever amount of goods he, the defendant, might purchase. How much he purchased on this letter of credit does not appear. He also testified that subsequently “we had a settlement on the 5th of March, 1882, in which the note and mortgage were not considered, whereby a balance was found and agreed upon between myself and Mr. White, amounting to $1,004.57 in his favor up to that date.” This account stated was by the tacit understanding of the parties not brought into the case for adjustment,—was, in fact, studiously avoided by both of them.