37 P. 936 | Cal. | 1894
This action was brought to foreclose an instrument in the nature of a mortgage given by defend
From a mass of probative facts found, it appears in substance that the defendant George H. Lawrence, who was a butcher in the town of Oroville, desiring to buy a band of beef cattle which were for sale, and being without ready money to make the purchase, applied to the plaintiff hank. The price of the cattle was $1,600, and the bank agreed, in consideration of the making of the mortgage in suit, to furnish the money to pay for the cattle, and to advance Lawrence $200 besides, making in all the sum of $1,800; the arrangement being that the bank should take the hill of sale of the cattle in its own name, and hold it as additional security for its advances. The mortgage was accordingly executed, and on the same day that it was delivered, February 17, 1893, Lawrence drew his check on the bank for $1,800, which was honored by the hank, giving to the agent having charge of the cattle its draft for $1,600, and taking the hill of sale, and paying to Lawrence $200 in cash. For some reason, however, which does not clearly appear, the agent was unable to make delivery of the cattle, the sale fell through, and the $1,600 draft was returned to the hank on February 20th, without having been negotiated or cashed. On February 23d, Law
The main question presented is whether the findings support the judgment, and we think it manifest that they do not. Under the issues raised the ultimate facts to be found were as to the amount of the indebtedness, if any, and whether the same was due. It is true that the court, in finding 6, finds the balance of the account to be $1,218.90 in plaintiff’s favor,' with certain interest, and that by the terms of the overdrafts the same was due; but it is perfectly evident that this finding is merely a conclusion drawn from the antecedent specific facts found in finding 5, and it will be as readily seen that these facts do not.sustain the conclusion, either as to the amount of the balance standing in plaintiff’s favor, or as to the fact of its being due. These findings being inconsistent, we must look to the specific facts rather than the general conclusion to find support for the judgment, upon the well-settled principle that if a discrepancy exists between a general finding and the more specific findings of particular facts the latter must control. Looking at finding 5, it is apparent that the lower court was under a misapprehension of the effect of the transaction in including, as one of • the advances made by plaintiff, the $1,600 draft or bill of exchange given February 17th. The sale of the cattle having fallen through at that time, and the draft having been returned to the bank and never paid, it did not constitute an advance under the mortgage, since the sum was never in fact withdrawn from the funds of the bank. This, then, left but the $200 paid to Lawrence as the amount actually advanced on February 17th. Subsequently other advances were made, which gave a balance on March 3d of $852.26 owing plaintiff, these advances being clearly within the terms of the mortgage, because less in amount than $1,800. On March 4th the plaintiff advanced and paid the $1,600 for the cattle. This advance, in excess of the security afforded by the mortgage, was made partly in consideration of the promise by Lawrence to pay back within two days the balance of $852.26 then standing against him. This, however, he did not do, and thereupon the plaintiff required Lawrence to pay for the cattle as he got them. Bight
There is no other point requiring extended notice. The demurrer of defendants to plaintiff’s complaint was properly overruled. The instrument sired on, while having the form of a deed, and purporting in terms to convey the title to the property, shows upon its face that it was intended as, and in legal effect is, a mortgage, and not a deed of trust: Koch v. Briggs, 14 Cal. 256, 73 Am. Dec. 65. Being set out in full in the complaint, the fact that the pleader designates it as a “trust deed so being and operating as a mortgage” does not create an ambiguity or uncertainty in the pleading, since its character is to be determined from its terms. The allegation
We concur: Harrison, J.; Garoutte, J.