Gumm v. Ferguson

142 P. 341, 71 Or. 66, 1914 Ore. LEXIS 153

• Court: Oregon Supreme Court
• Decided: June 2, 1914
• Status: Published

Opinion

Mr. Justice Moore

delivered the opinion of the court.

1. No bill of exceptions has been brought up, nor does it appear that any request was made by plaintiff’s counsel for other or different findings than such as were made. In this condition of the record of the trial of the cause the only question to be considered is whether or not any competent testimony was received tending to support such findings: Flegel v. Koss, 47 Or. 366 (83 Pac. 847); Van de Wiele v. Garbade, 60 Or. 585 (120 Pac. 752); Walker v. Warring, 65 Or. 149 (130 Pac. 629).

2. It is admitted by the plaintiff as a witness in his own behalf, that prior to the commencement of this action he had received from the defendants sums of money and articles of personal property accepted at stipulated values exceeding the amount of the note sued on. He insists, however, that such payments were made and property delivered without any directions as to the manner of applying the credits, and that he indorsed them upon an unsecured promissory note of $2,125 executed to him by the defendants, which negotiable instrument he had lost. The defendants severally testified that they had never given him any such promissory note.

It appears from a transcript of the testimony that on April 11, 1908, the plaintiff and his wife sold and conveyed to the defendants 917 acres of land in Walla Walla County, Washington, at $37.25 an acre, amounting to $34,158.25, subject, however, to a mortgage of $15,579.91, the payment of which the purchasers assumed, so that the consideration stipulated for was $18,578.34. This purchase price was evidenced in part by promissory notes executed at the time of the conveyance by the defendants to the plaintiff for $3,500, maturing October 1,1908, and $8,079 a year later, both notes being secured by a mortgage of such real property, and the former by a chattel mortgage of the crop growing upon the premises. The difference between the sums of these promissory notes and the price agreed to be paid for the land so conveyed is $6,999.91, which remainder the defendants severally testified was paid by a conveyance of 320 acres of land in the same county and state executed to the plaintiff’s wife, Sarah J. Gumm, April 11, 1908, by the defendant William A. Ferguson and his wife for the agreed consideration of $9,000, subject, however, to a mortgage of $2,000, the payment of which was assumed by Mrs. Gumm, so that the price, according to the defendants’ theory, was $7,000, thereby overpaying the remainder by 9 cents. A duly authenticated copy of the deed last referred to was received in evidence showing an expressed consideration of $10,000, and reciting that the premises were free from all encumbrances except a mortgage for $2,000 and accrued interest.

The testimony of the plaintiff and of his witnesses is to the effect that the 320 acres of land so conveyed to Mrs. Gumm were accepted at an agreed price of $22.50 an acre, or $7,200, less the mortgage, which, with accrued interest, amounted to $2,032.90, thereby fixiug the purchase price of such realty at $5,167.10. No attempt was made by plaintiff’s counsel to explain how the difference of $1,832.81 existing between the asserted consideration last stated and $6,999.91, the admitted remainder of the purchase price of the 917 acres, was evidenced.

The testimony of the defendants is, in substance, that they sold the 917 acres of land November 3, 1909, when there remained as a part of their $11,579 mortgage on the premises only $1,925, to evidence which they executed to the plaintiff a promissory note therefor, which negotiable instrument, though fully paid, is sued upon herein, and that when the latter note was given they were informed by the plaintiff that $1,925 wag the entire debt then due or owing from them to him.

The plaintiff and his witnesses testify that the defendants had given him another promissory note for $2,125; that a note for that snm, purporting to have been executed to G-umm by the defendants, had been exhibited by him to some of the witnesses; and that •such instrument had indorsed thereon partial payments.

Whether or not the evidence preponderates in favor of either party cannot be determined on this appeal, and, since competent testimony was received upon which the court’s determination could have been based, the judgment should be affirmed, and it is so ordered.

Affirmed.