67 P. 129 | Cal. | 1901
This is a suit for an accounting, the plaintiff alleging a balance in his favor of about four thousand dollars. This, with other allegations, is denied by the defendants, who claim, in their answer, a balance in their favor of $3,135.20. There is also a cross-complaint, which sets up a deed of the plaintiff and wife to the defendant Wise, of date March 22, 1894, purporting to convey to the grantee the land described, but claimed by the defendants to be a mortgage given to secure indebtedness to Christy Wise, and contemplated advances. Judgment was rendered in favor of the defendants named for the sum of $1,350, and for the foreclosure of the mortgage, as prayed for. From which and from the order denying his motion for a new trial the plaintiff appeals.
The accounts between the parties (which extend over a period of nearly five years) have their origin in an agreement between the plaintiff and the defendant John Wise, of date April 10, 1891, by the terms of which there was delivered to the plaintiff by Wise sixteen hundred sheep, to be kept on shares by the former for the period of five years, or such less period as the latter might determine, the plaintiff to receive from the grade sheep one half (subsequently changed to two thirds) of the wool and increase, and from the thoroughbreds, one third, etc. This contract was terminated in August, 1895, the plaintiff turning over to Wise's agent 3,185 sheep, and the latter agreeing to pay him thereafter fifty-five dollars per month, for the services of himself and son in herding them, which arrangement continued until December, 1895, when it was discontinued. From the beginning of the transaction the wool was, with the concurrence of the parties, consigned to Christy Wise, by whom all sales and advances were made, and with whom all accounts were kept. An account was rendered by them, February 29, 1896, which was introduced in evidence by the plaintiff, and to which, on the trial, all objections were waived by him, except as to certain items charged against the plaintiff and certain omitted credits claimed by him. These, by stipulation, were left to the determination of the court. The court found that, on a just and true accounting, there was due to the defendants the sum of $1,350; and also that the deed of the *279 plaintiff and wife was a mortgage, as alleged in the cross-complaint.
With regard to the latter finding, it is specified that "the evidence shows that the deed . . . was not intended as a mortgage to secure any indebtedness from plaintiff to Christy Wise." But, assuming the sufficiency of the specification, the defendant Wise explicitly testified to that effect, and his evidence was not contradicted by the plaintiff's testimony or otherwise. The indebtedness was also clearly shown by the evidence. Nor is the objection tenable that the deed, because made to one as security for the debt of another, or for future advances, could not be regarded as a mortgage. In the ordinary case of a deed given to secure a debt to the grantee, equity interposes, on the ground of the necessity to prevent the fraudulent use of instruments contrary to the intent and agreement of the parties, it being said that "fraud in their use is as much a ground for the interposition of equity as fraud in their creation" (Pierce v.Robinson,
With regard to the finding as to the balance due the defendants Christy Wise, there is no specification of the insufficiency of the evidence. The other findings objected to are not in conflict with this; nor were they different, would this finding be affected. Nor is there anything in the evidence to show that this or any of the findings are wrong. The account rendered by the defendant on February 29, 1896, was admitted by the plaintiff to be correct, except as to certain items specified, amounting in the aggregate, exclusive of the interest charged, to a little over two thousand dollars. The aggregate of interest charged subsequent to March, 1893, (at which time the plaintiff admits the account was stated,) is $832.42. Some of this was probably an overcharge, — as, for example, the rates given in some of the items, — but the amount of the overcharge does not appear. As to the other items, no evidence was introduced by the plaintiff to support his objections; but the court nevertheless allowed the plaintiff a credit of two thousand dollars, and the balance of the account was reduced by that amount. There is nothing in the record that would justify us in holding that this was not sufficient.
We advise that the judgment and order appealed from be affirmed.
Haynes, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.
McFarland, J., Henshaw, J., Temple, J.
