117 Ga. 6 | Ga. | 1903
Aug. Schmidt instituted proceedings to foreclose a mortgage on realty, given to him by T. I. Mitchell, to secure a promissory note made by the latter to the former, dated Oct. 30, 1891, and due Jan. 1, 1893, for $1,500, with interest from date at the rate of eight per cent, per annum. ■ Mitchell, for cause why the mortgage should not be foreclosed, answered, that the' note secured by the mortgage was given for money advanced by plaintiff to him ■to he used in his sawmill business, it being agreed that he should ship to plaintiff the output of the mill; that when the note and mortgage were executed he was indebted to plaintiff, on account, about $250, which was paid soon thereafter ; that in the latter part of 1898 he learned that plaintiff claimed the indebtedness on the account to be $1,082.15, and that plaintiff had been applying large payments made by defendant toward the satisfaction of such alleged old account, instead of crediting such payments upon the note. By amendment-to his original plea the defendant further alleged: “ (1) Defendant made to plaintiff numerous payments by shipment of rafts of timber, which were accepted by said Schmidt at their cash value in Darien, Ga., as cash payments, and were to be credited on the note and mortgage sought to be foreclosed. Defendant attaches hereto, as part of his answer and amendment, an itemized statement of the date of receipt of said rafts by said Aug. Schmidt, the plaintiff, the number of said rafts, and the amount of such value of each raft, which statement is marked exhibit ‘ A.’ (2) Defendant therefore pleads payment, and says that at the times in said statement annexed he paid to plaintiff, in Darien, Ga., the several sums indicated in said statement, aggregating about the sum of $9,901. 25. And said defendant prays judgment against said plaintiff for the amount of excess of said payments over the amount of said note and mortgage.” The answer further set up, ■“that for a valuable consideration said plaintiff contracted, and agreed in writing, after the execution of said note and mortgage, that there should be no charge of any interest whatever on said note and mortgage; ” that, notwithstanding such contract, plaintiff had charged defendant $921.59 as interest. Defendant prayed for an accounting; and upon his motion the case was referred to an auditor. The auditor found : “ There was due and unpaid on said
Judgment reversed.