Walters v. Armstrong

• Decision Date: 01 January 1861
• Parties: EDWARD M. WALTERS et al. vs. GEORGE W. ARMSTRONG.
• Court: Minnesota Supreme Court

5 Minn. 364

EDWARD M. WALTERS et al. vs. GEORGE W. ARMSTRONG.

Supreme Court of Minnesota.

Appeal from order of district court, Ramsey County.

Smith & Gilman, for appellants.

W. K. Gaston, for respondent.

ATWATER, J.

The plaintiff Armstrong brings his action to foreclose a mortgage against the defendant, securing two promissory notes — one for the sum of $2,108, and one for the sum of $464. The execution of the notes and mortgage is admitted by the defendant, but the answer claims that the defendants should be credited on the note of $2,108 at its date, with the sum of $578.78, which the plaintiff refused to allow. A motion was made by the plaintiff to strike out as irrelevant and immaterial so much of the answer as set up the facts upon which the defendant relied as entitling him to such credits, which motion was granted, and from the order thereon the defendants appeal to this court.

The portion of the answer which is material in the consideration of the points raised on this appeal is as follows (the notes in suit being the amount, as claimed, of two other notes previously held by plaintiff): "That on the 30th day of December, 1858, the said Armstrong proposed to said Walters to compute the amount due upon said two notes above described, and that the amount actually due thereon should be placed in a new note, to be secured by a mortgage upon the real estate in said complaint described. That thereupon said Armstrong estimated the amount claimed by him to be due upon said two notes at $2,108, to which computation the said Catharine (Walters) and said Edward then and there objected; the said Catharine, whose property was about to be mortgaged to secure the amount due to said Armstrong, insisting that said amount was not legally due, and that she had made inquiries as to the amount, and that the said amount so claimed was more than the amount legally due, and thereupon it was agreed by and between the said plaintiff and said Edward M. and Catharine, that the amount claimed by said Armstrong should be included in one note; and that if said amount of $2,108 was more than the amount legally due upon said two notes herein first above described as given to said Merritt and Armstrong, that said Walters should be credited upon said $2,108 note and mortgage with a sum equal to such difference, and so as only to leave due upon said note at its date a sum equal to the amount legally due, and no more." There is but one question which we deem it necessary to examine in the disposition of this case. The answer in substance alleges, that at the time of the execution and delivery of the note of $2,108 there was a...