Taylor v. Bernard — 54 N.Y. St. Rep. 306

Majority

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William W. Taylor, App’lt, v. Franklin B. Bernard et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

1. Mortgage—Payment.

In an action to foreclose a mortgage it appeared that both the mortgagor and mortgagee were dead; that they were friends and dealt with each, other; that the mortgagor credited the interest on the mortgage in the account on his books, which, in 1883, showed that the mortgagee was indebted to him in an amount equal to that of the mortgage. The parties lived six years thereafter, and no claim on the mortgage was made until after both died. Held,, that it was properly found that the mortgage was paid.

2. Evidence—Books of account.

The evidence showed that the mortgagee kept his own books and that persons settled with him on those books and had found them correct. Held, that the books were properly received in evidence.

Appeal by plaintiff from a judgment in his favor for $44.59.

Action to foreclose mortgage given by Charles Bernard to one James Brown, in 1877, for $600, and interest for 16 years, ever since bond and mortgage was executed. The mortgagor and mortgagee are both dead. Bernard died in 1889, leaving children, who are made defendants, and Brown died in August, 1890; his administrator assigned this mortgage to plaintiff. The defense is payment of all except $44.59. The court found in defendant’s favor, allowing the defense of payment and off-set, and granting judgment for plaintiff for the $44.59.

Bernard, the mortgagor, kept a country grocery store and hotel, and sold farm truck, segars, etc. Brown, the mortgagee, traded with him at his store, and also worked for him on his farm. Brown was seen frequently in mortgagor’s store, several times a week during the time this account between mortgagor and mortgagee was kept.

Bernard kept no clerk in his store, attended to the búsiness, and kept his own account books.

One witness testified he saw Brown go with Bernard (mortgagor) into the private room off the store; they took the books of account with them, and they went over them together.

The account was originally with James Brown, the mortgagee, but afterwards it appears that James’ brother John bought some goods, and the articles thus purchased by John were charged “ John.” Excluding the purchases made by John, and allowing

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interest on the balances, from time to time, the amount due on the mortgage was $44.59, as found by the court.

The books showed after allowing credits, that $609 was due Bernard. The mortgage was $600. After the book account was closed in 1883, the parties, mortgagee and mortgagor, saw each other frequently, almost every day, and their relations were most friendly.

Three witnesses testified all the entries were in mortgagor’s handwriting, and that he kept no clerk; that they settled with him on those books of account, that they found them correct and honestly kept. Two of the witnesses testified that they were in the store frequently, and saw customers settle on those books. Never heard any objection made to the accounts ; that the goods were delivered as mentioned in the accounts.

James C. De La Mare, for app’lts; I. Newton Williams, for resp’ts; G. D. W. Clocke, guardian for infant def’t.

This is an action for foreclosure of a mortgage for $600, made in 1877, and both parties to it are dead.

It was assigned by the mortgagee’s administrator to the plaintiff. The defense was payment in effect.

The original parties to the mortgage were neighbors and friends and dealt with each other as long as they both lived. The mortgagor kept a store and the mortgagee dealt there continuously, and in 1883 the account appears to have been substantially closed by it appearing that the mortgagee owed the mortgagor on book account the amount, of the mortgage. This was proved beyond question, so that if the amount which the mortgagee owed the mortgagor could not be set off or regarded as payment pro tanto, the result would be to collect the whole amount of the mortgage and leave the book account entirely unpaid, as the statute of limitations would cut it off. It is difficult to conceive how anyone can maintain such a proposition in this case.

We think the findings of the court below are just and amply supported by the evidence, and that the conclusions of law naturally follow from the findings.

The only question is as to the admissibility of the books. We think they were admissible under the proofs, and that, taken with all the other proof in the case, established beyond all question the payment of the mortgage.

All the circumstances surrounding the transaction point to the payment of this mortgage during the lifetime of the parties, and, even disregarding the evidence furnished by the books of account, it looks very much as if the mortgage was regarded by both parties as settled and paid.

When we take into consideration the relation of the parties, their course of business, the fact that interest on the mortgage was credited on the books of the mortgagor with the items of goods sold to the mortgagee, that no claim was made for so many years that anything was due on the mortgage, all point to the theory that the mortgagee permitted the mortgagor to pay off the mort

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gage by goods out of his store. No other reasonable construction can be placed upon their conduct.

The decision below was just and right, and should be affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.