Merithew v. Orr

Paterson, J. — It is alleged in the complaint that on November 4, 1888, the defendant’s testator was indebted to plaintiff in the sum of $761.32, the balance of a mutual account; that after the death of the said testator and the probate of his wdll, plaintiff’s claim was duly presented to defendant, the executor, for allowance, and was rejected.

The answer denied that the defendant’s testator was indebted to plaintiff as alleged, or at all.

The court found that on April 15, 1888, plaintiff and the testator, Matthew W. Orr, had a settlement of their accounts with each other, and agreed that there was due at that time from plaintiff to Orr the sum of $115; that said Matthew W. Orr thereafter became indebted to plaintiff for hay sold to him in his lifetime in the sum of $515; for one mare, $75; for the use of a team and mowing-machine ten days, $15; and for hauling hay, [364]$30; amounting to $635,—leaving a balance due plaintiff at the time of the death of said testator in the sum of $520.

Judgment was entered in favor of plaintiff for the last-named sum, with interest, and defendant has appealed.

The appeal is from the judgment, the judgment roll only having been brought before us.

It cannot be said that the findings go beyond the issues; the action is to recover the balance due on the mutual account; and the items were duly set forth in the claim presented and in the complaint. The court found as an ultimate fact that the estate was indebted to plaintiff in the sum of $520,—which was less than the amount claimed. The evidence is not before us, and the finding is therefore conclusive.

The judgment is affirmed.

Harrison, J., and Garoutte, J.,' concurred.