Peterson v. Johnson

20 Wash. 497 | Wash. | 1899

The opinion of the court was delivered by

Reavis, J.

The complaint in this action is in ordinary form for the foreclosure of a mortgage. The mortgage was executed by appellants to respondent, plaintiff, on real estate to secure tbe payment of a note of even date, due five years after date, with interest. The note and mortgage contained tbe usual provisions that upon default in tbe payment of interest tbe whole sum, both principal and interest, would become immediately due and collectible at tbe option of tbe bolder. Tbe complaint alleges tbe nonpayment of interest due and demand for payment, and the election to declare tbe whole sum due. Tbe answer denied tbe delivery of tbe mortgage to respondent, and set up as defense and counterclaim a breach of warranty by respondent in failure to pay taxes upon tbe property which bad been conveyed by respondent to appellants. Appellants also set up as affirmative defense and counterclaim that appellants, at tbe special instance and request of plaintiff, sold and delivered to plaintiff goods, produce, lumber, meats, etc., at tbe agreed price of $192.18, no part of which bad been paid except tbe sum of $32.15, leaving a balance due appellants of $160.03 on such account, and appellants demand that tbe suit be dismissed and for judgment on their counterclaim. Evidence was beard by tbe court, and a judgment rendered foreclosing the mortgage and decreeing sale of tbe mortgaged property, and deducting tbe counterclaim allowed appellants from tbe amount of tbe judgment. bTo separate findings of fact were filed by tbe court. Tbe recitations in tbe decree apparently cover tbe material facts in issue by tbe pleadings. At tbe time tbe judgment was signed tbe appellants presented to tbe court certain proposed findings of fact and conclusions of law, and requested tbe court to mate such findings and conclusions, which was refused, and appellants excepted. Some of tbe findings of fact so tendered were without controversy in tbe pleadings, and some of them not supported by tbe evidence in tbe case, which has all been brought here.

There is hut one question seriously argued by counsel for appellants. It is insisted that the amount of the counterclaim on the account set up by appellants should have been applied by the court in payment of interest overdue on the note which the mortgage was given to secure. But, after an examination of the authorities cited by counsel for appellants, we are convinced that the judgment in the superior court was correct. It is nowhere shown in the evidence that there was any agreement for the application of the value of the items in the account furnished to respondent to the interest due on the note. In a specific loan for five years, secured by mortgage, it would not follow as a matter of law that a balance of an outside mutual account between the mortgagee and mortgagor should be applied upon the note and mortgage, and the court cannot arbitrarily make such application, if the parties have evinced no intention of that sort. The record does not disclose that specific exception, was taken to the failure of the court to make findings of fact, but the exception taken was to the refusal of the court to find the facts proposed by appellants. The material fact with reference to the application of a balance, when struck on the account between the parties, to the interest due on the note secured by the mortgage, is entirely resolved against the appellants by the evidence. The action of the court in refusing the finding of fact supporting appellants’ contention in this regard was correct. The superior court is required by the ■statute to make findings of fact upon all the material issues in an equitable cause tried by it, and the statute requires ■such findings to be separately made. This rule was un■questionably adopted in aid of appeals in equitable causes to avoid the expense of bringing a transcript of the testimony in the cause, unless it should be required if the facts were dissented from by either party, and also to relieve the labors of the appellate court from an unnecessary examination of a record where the findings of fact made by the superior court are accepted by the parties, or to reduce the controversy of fact merely to such findings as are specifically excepted to.

Concluding that the judgment is correct, it will be affirmed.

Gordon, C. J., and Anders and Dunbar, JJ., concur.