| Or. | Dec 11, 1935
Plaintiff brought this action seeking to recover from the defendant the sum of $812.73, alleged to be due and owing him from the defendant. The defendant answered, alleging payment in full. This allegation was denied by the reply. By stipulation of the parties, the cause was tried before the Honorable John P. Winter, circuit judge, without a jury and resulted in a judgment in favor of the defendant. From this judgment, the plaintiff has appealed.
It appears from the evidence offered upon the trial that on May 27, 1930, the defendant and his wife sold and conveyed to Frank G. Horton and Florence M. *198 Horton, his wife, two lots in Parkrose Addition in Multnomah county, Oregon, and received in part payment therefor a note for said sum, executed by said grantees and payable to the order of plaintiff and his mother, and a mortgage upon said lots given by said grantees to the plaintiff and his mother to secure the payment of said note, the note and mortgage being payable five years from and after said date.
The defendant offered evidence tending to show that plaintiff accepted the note and mortgage in full payment of defendant's indebtedness to plaintiff. This the plaintiff denied but his own evidence shows that said note and mortgage were delivered to him, that he retained the same in his possession and, while having the same in his possession, collected and received the interest thereon, and later, in consideration of a deed given to him by the Hortons of the mortgaged property, he satisfied the mortgage of record.
Under the evidence offered and the plain admissions of the plaintiff that he had collected the interest on the note and satisfied the mortgage of record, the learned trial court was warranted in finding that the plaintiff accepted the note and mortgage in full satisfaction and payment of the amount then owing to plaintiff from the defendant. The learned trial court found as follows:
"That on or about May 21, 1930, there was owing from the defendant to the plaintiff herein the sum of $812.73.
"That on or about the 27th day of May, 1930, the defendant caused a note to be made by Frank G. Horton and Florence M. Horton, his wife, to the plaintiff herein and his mother, Mary Hilker, in the sum of $812.73, which note was secured by a mortgage covering Lots 8 and 23, Block 81, Parkrose Addition, Multnomah County, State of Oregon, executed by said Frank G. Horton and Florence M. Horton, his wife; *199
"That the plaintiff received and accepted said note and mortgage so made, in full payment of the amount owing to him from the defendant herein."
Under section 2-503, Oregon Code 1930, in a law action tried before the court and without a jury, the finding of the court upon the facts is to be deemed a verdict and can not be set aside or disturbed upon an appeal if there is any substantial evidence to support such finding. As we have shown, there was ample evidence to support these findings and, since we have no power to disturb them, the judgment appealed from will be affirmed, and it is so ordered.
CAMPBELL, C.J., and BEAN and BAILEY, JJ., concur. *200