32 Cal. 168 | Cal. | 1867
The defendant Newbaur executed the mortgage sought to be foreclosed, to the plaintiff. He subsequently mortgaged the same premises to Steinberg, who assigned to defendant Myres, and afterwards sold and conveyed to defendant Ellsasser. The defendants set up as a defense, a tender to the-plaintiff, on behalf of Ellsasser, of the full amount due, after the law day of the mortgage, and a refusal of the plaintiff to receive it. The testimony of the plaintiff tends to show the tender set up. But upon the point, as to whether the plaintiff was informed that the tender was made on behalf of Ellsasser, the testimony is conflicting. There is no pretense that any tender was made on behalf of Newbaur or Myres. A
It is true, Williams testifies that he informed plaintiff that the tender was on behalf of Ellsasser. But there is a plain conflict on the point, and the Court determined the question of fact in favor of plaintiff. This question appears to have been made in the Court below and was one of the grounds upon which, after reconsidering the testimony, a new trial was denied. In specifying the grounds of the decision deny- * ing a new trial, as required by law, the Judge says: “ I am not satisfied that at the time of the tender the plaintiff knew that the money was tendered by or on behalf of the defendant Ellsasser. We cannot disturb this finding on the evidence in the record. The tender having been made by a stranger, without informing plaintiff on whose behalf it was made, was invalid. The tender is not aided by the fact that plaintiff supposed it made on behalf of Myres, who was entitled to make it, for it was not in fact made on his behalf. On the ground indicated the judgment must be affirmed, and it is
Judgment and order denying new trial affirmed.