82 Cal. 128 | Cal. | 1889
This was an action to foreclose a mortgage given to the firm of Neylan & Young by the defendant Abram F. Green to secure the payment of a promissory note for the sum of nine hundred dollars. The answer, among other things,'puts in issue the- allegation of non-payment of the note. The court found that it had been paid, and rendered judgment for the defendants. The plaintiff appeals from an order denying his motion for a new trial.
There can be no doubt that Abram F. Green received only $133.12. And he did not receive this sum from Neylan & Young, but from Dingwall & Waldo, to whom
We do not think that the relation between Abram F. Green and Dingwall & Waldo are material in this connection. As between Neylan & Young and Green, the latter was a surety merely. And the result is, that if the debt was paid, either by Dingwall & Waldo or by Green, it was extinguished, and the plaintiff has no case.
The court made a general finding that the note was paid. It also made a special finding that after the date of the note and mortgage “ the said Dingwall & Waldo received from Abram F. Green merchandise to the value of one thousand dollars in payment of the debts of said Abram F. Green, one of which was the promissory note in suit”; and that “ within eighteen months after the date of said note and mortgage, Dingwall & Waldo had shipped to said Neylan & Young goods, wares, and merchandise to the value of several thousand dollars, including all the merchandise received from Abram F. Green, mentioned in finding 12, and the same was received by Neylan & Young, and placed to the credit of Dingwall & Waldo in their account. The amount of goods, wares, and merchandise so shipped and received was sufficient to pay and did pay all of the indebtedness of Dingwall & Waldo owing to Neylan & Young on the twenty-fourth day of March, 1876, including the note and mortgage in suit.”
Unless this finding can be set aside as not warranted by the evidence, the order appealed from must be affirmed. We think there is evidence in its support. It seems plain that Abram F. Green’s lumber and stuff was sent to Neylan & Young through Dingwall & Waldo. Levi Green testifies that a sufficient quantity to pay off the / note was sent, and Waldo testifies to the same thing; and/ the plaintiff admits that from the date of the note and
It further appears in evidence that the understanding was, that the note was to be taken up in a short time. Waldo told Green that “just as soon as they shipped some stuff up there that the mortgage would be canceled,” and the plaintiff was informed of this arrangement.
The foregoing evidence, at least, cast the burden upon the plaintiff of explaining why the payments were not, , or ought not to have been, applied to the note in suit. The whole evidence is very confused and unsatisfactory upon essential matters. And we do not feel that we can say that the finding quoted should be set aside.
With reference to errors in law, the appellant’s counsel has the following: “ Having made so clear a case for a reversal of the order denying a new trial on the facts of the case, so far as errors are concerned, we here simply point out where they are to be found in the transcript,” and a list of folios of the record is added. We do not suppose that the court will think it necessary to examine questions submitted to it in this manner. And we merely say that while the case appears to have been very loosely tried, we have seen no error which materially affects the finding above referred to.
We therefore advise that the order appealed from be affirmed.
Foote, 0., and Belcher, C. 0.,. concurred.
For the reasons given in the foregoing opinion, the order appealed from is affirmed.
Hearing in Bank denied.