19 Wis. 412 | Wis. | 1865
There are several difficulties with the appellant’s defense. In the first place we think it very clear that the agreement relied on in the answer was tainted with maintenance and champerty, and was consequently void. The counsel for the respondent, however, does not attack the contract upon any such ground. He insists that the appellant cannot claim any advantage from the contract even if valid, because he has not performed it according to its terms. The decided weight of testimony sustains this position. Riley did not pay up and discharge the judgment of foreclosure rendered on the Merrick mortgage, as he agreed to do. He states, it is true, that he was never called upon to pay the judgment, and that he has never told Underwood that he could not comply with the agreement. His testimony is strongly overborne by the conflicting statements of the other witnesses, who swear that he said, when called upon to arrange the matter, that he could not raise the money to discharge this judgment, and did not intend to try to raise it. So if the' appellant was able to show that the agreement was not champertous, he must fail in his defense, because he does not show performance of it. It was admitted by the plaintiff on the trial, that $150 had been paid on the note and mortgage prior to the making of the agreement mentioned in the answer. The defendant was not credited with the amount of this payment, as he should have been. The judgment of the circuit court must therefore be modified so as to give him the benefit of this payment thus admitted to have been made. In other respects it is "right and must be affirmed.
Judgment modified accordingly.