46 Cal. 380 | Cal. | 1873
The mortgage, for the foreclosure of which this action is brought, appears upon its face to have been given to secure the payment of four thousand dollars, with interest, at a future day. The complaint averred that no part of the sum had been paid, but that the whole sum, with interest, was due at the commencement of the action. The defendant pleaded the general issue—the pleadings not being verified.
The effect of the plea was to render it incumbent upon the plaintiff to prove the sum due on the mortgage, and the production of the mortgage at the trial was competent evidence for him upon this point. The plaintiff having rested, the defendant, without objection, read in evidence an agreement made between himself and the plaintiff, by which it appeared that the two, being concerned in á joint adventure in the purchase and sale of certain lands upon speculation,* and the plaintiff having advanced the whole sum expended in the purchase, the mortgage was in fact given to secure the repayment to the plaintiff of the defendant’s half of the purchase money, and that in the settlement of the accounts the defendant was to be allowed a reasonable compensation for his professional services, if any rendered by him, as an
The defendant, in order to reduce the amount due on the mortgage, offered to prove that he had rendered services under the agreement referred to, and also to prove their value, but the evidence was excluded.
The effect of the general denial pleaded being to raise an issue as to the balance actually due upon the mortgage, and - the agreement in evidence having expressly provided for an allowance to the defendant for his professional services, we are of opinion that proof of the rendition and value of the services was competent for the purpose of reducing the sum for which the decree of foreclosure was to be entered.
Judgment reversed and cause remanded.