Mayo v. Davidge — 17 N.Y. St. Rep. 1005

Majority

p. 1005

Wallace Mayo, Resp’t, v. Sallie M. Davidge et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed June 25, 1888.)

Headnote

Moktgage—Sufficiency of evidence to establish a satisfaction.

The mortgage was given hy the wife conjointly with her husband, on her property, to secure any indebtedness that might arise against the husband on account of stock speculation. On a settlement of the accounts which were open at the time the mortgage was given, there was left a balance of $500 due on the mortgage, but on an account opened with other parties after the delivery of the mortgage, there was an admitted balance of $600 due from the plaintiff to the husband on account of advances made. The husband testified that such advances were agreed to be applied in satisfaction of the mortgage. Held, that such testimony being credible and corroborated by the circumstances, was sufficient to establish a satisfaction thereof, notwithstanding the defendant’s attempt to plead such indebtedness as a set-off

Appeal from a judgment of foreclosure and sale of the King’s county special term.

F. C. Combine, for app’lts; H. S. Snow, for resp’t.

The mortgage and bond in suit were given at the request of R. O. Davidge, as security for any indebtedness that might arise against him to the plaintiff by reason of their joint account in stock speculations.

When the mortgage was given the R. O. Davidge was indebted to the plaintiff in some amount, how much does not clearly appear, upon joint accounts with Owen & Mercer, George Brennecke and Robert Stobo, and these were the accounts in which indemnity was secured by the mortgage. Both parties contributed to the margins; losses were made in them, and R« 0. Davidge paid $1,500 in cash on account of such losses, leaving a balance of $500 due on the mortgage.

It is conceded that another similar joint account was opened, after the delivery of the mortgage, with DeGroot & Go., upon which the R. C. Davidge made more advances than the plaintiff, and upon the closing up of the same there was a balance due from the plaintiff to R. 0. Davidge of more than the amount due on the mortgage; the plaintiff admits the amount to be about $600.

The plaintiff now seeks to collect on one of these joint accounts $500 of the defendant, and let R. 0. Davidge collect the balance due him on the other joint account in the best way he can do so.

R. 0. Davidge says that the $600 indebtedness was applied in payment of the mortgage.

This was an equitable adjustment, and it seems to me that R. O. Davidge is so far corroborated that he ought to have been believed.

p. 1006

It is not conclusive against the defendant that the indebtedness on the DeG-root account was attempted to be pleaded " as a set-off or counter-claim.

The testimony of E. 0. Davidge seems incredible and the transaction is just what two honest men would be likely to do under such circumstances.

It would impute dishonest motives to the plaintiff to hold that when they had a settlement and found a large amount due from the plaintiff on the DeG-root account, the plaintiff intended to collect the mortgage and refuse to pay his own honest debt.

The mortgage was given as indemnity in joint stock transactions to be thereafter continued, and the parties undoubtedly intended it should cover all their subsequent joint transactions.

On all the evidence the weight of evidence seems to be that the mortgage was satisfied, and judgment ought to have been rendered for the defendant.

Judgment reversed with costs.

Barnard, P.' J., and Dykman, J., concur.