Gaylord v. Beardsley

(5) And the plaintiff avers, upon information and belief, that at the time of said transaction with the defendant the said Gaylord’s wife and this plaintiff were owing the defendant the sum of $1,000, and for which the defendant held the bond of said Gaylord and his wife, secured by a mortgage on certain real estate. That shortly after said transaction had by said Gaylord with the defendant, above set out, as to the purchase of said mortgage, and on the 29th day of October, 1884, he proposed to the said Gaylord to apply and appropriate the sum of $1,035 of the amount so owing said Gaylord by the defendant for the purchase price of said mortgage, so assigned to him in payment of said bond and mortgage so executed by said Gaylord and wife to the defendant, on which there was then owing the sum of $1,035 principal and interest, and which the said Gaylord and wife agreed that he might then do; and he thereupon promised and agreed to so apply the same, and to cancel and satisfy said bond and mortgage.

(6) And the plaintiff avers, upon information and belief, that said sum of $5,218.56, or thereabout, being the amount owing by said defendant to said Arthur M. Gaylord for the purchase of said mortgage on September 18, 1884, has never been paid by said defendant in full. That he has only paid the sum of $1,450 in money, (which was paid on that date and between that date and October 29, 1884,) and the sum of $1,035, which was applied by the defendant, with the consent of said Gaylord and his wife, to pay and cancel said mortgage of $1,000 with interest, which said defendant so agreed to apply on October 29, 1884; and that the balance of the same was due and owing said Arthur M. Gaylord on October 30, 1884, and at the time of the assignment to Ann O. Bradburn, as hereinafter mentioned, on account of the amount which the defendant had agreed and promised to pay said Arthur M. Gaylord for the mortgage so assigned to the defendant. That the defendant has been often requested by the said Gaylord, and for him, to pay the balance owing and due from him to the defendant before the commencement of this action, but he has neglected and still neglects so to do, and has refused so to do, and is now indebted to this plaintiff therefor.

(11) And plaintiff further alleges that on or about the 23d day of June, 1890, said defendant commenced a suit in the supreme court of this state against this plaintiff, as an individual, and Arthur M. Gaylord, upon the said bond hereinbefore set forth and referred to as having been paid on the said 29th day of October, 1884; and this plaintiff, one of the defendants in that action, and her codefendant, answered the said complaint in that action, and set forth that said bond had been paid. That said cause was thereafter tried at a circuit term of said court, held at the courthouse in the city of Auburn, N. Y., commencing on the 4th day of January, 1892, before Hon. W. H. Adams and a jury, and evidence was given on the part of said defendants and on the part of the plaintiff as to whether said bond and the mortgage accompanying the same as collateral security had been paid, on or about said 29th day of October, 1884, and how and when the same was paid, and the question was submitted to the jury as to whether it had been so paid, and how and when; and the jury found a verdict for the defendants. That a judgment was thereafter, on the 8th day of January, 1892, rendered upon said verdict, and entered in the Cayuga county clerk’s office, dismissing upon the merits the complaint in said action upon said bond, and for costs against said plaintiff in that action, said defendant herein. That the fact of payment, and how and in what manner, as aforesaid, so passed upon and found in -said action as aforesaid, was a necessary and material and essential fact to support the judgment in said action, which action was between the same parties as the parties to this action, except that the said Arthur M. Gaylord was in said action a party defendant as one of the obligees upon said bond, and .except that this plaintiff was individually a defendant, and they were privies therein to the parties to this action and the subject-matters therein. That said judgment is unreversed, and stands upon the record a valid judgment between these parties as to the fact of payment of said bond and mortgage as aforesaid, and as to the purchase of said mortgage as aforesaid at its face value and interest, by the defendant as aforesaid. And that the fact of such payment of said bond and mortgage by the said defendant, and that the same was paid on October 29, 1884, by deducting the same from the amount of said mortgage of $4,784, and the fact that on September 18, 1884, this defendant purchased said mortgage of $4,784 of the said Arthur M. Gaylord, and agreed to pay him the face, value and interest, was a necessary and essential fact to support the judgment in said action, and that said judgment remains in full force and unreversed. Wherefore the plaintiff demands judgment against the defendant for

J. R. Cox, for appellant.

Frank D. Wright, for respondent.