Woolsey v. Bohn

• Decision Date: 15 July 1889
• Citation: 42 N.W. 1022,41 Minn. 235
• Parties: WOOLSEY ET AL. v BOHN ET AL.
• Court: Minnesota Supreme Court

41 Minn. 235

42 N.W. 1022

WOOLSEY ET AL.vBOHN ET AL.

Supreme Court of Minnesota.

July 15, 1889.

(Syllabus by the Court.)

1. In an action to cancel a mortgage upon the ground that its conditions have been fully satisfied, that being the only issue, and no affirmative relief being sought by the defendant, a finding that a specific amount is still unpaid, and that the action should therefore be dismissed, will not conclude the parties in a subsequent litigation, involving an issue as to the amount unpaid.

2. Cash-books kept in the ordinary way are admissible as evidence, the proof prescribed by statute as to books of account being made, although the entries in question are not in terms charges against a person named as for money paid to him. Account-books called “journals,” consisting of transcripts from the “stubs” of check-books, made several days after the giving of the checks, and the check-books and checks having been preserved, are not admissible in evidence.

3. A statutory lien being charged for lumber furnished for the construction of a building, evidence merely that the amount of lumber claimed to have been furnished was not “required” for the construction is inadmissible.

Appeal from district court, Ramsey county; BRILL, Judge.

Charles A. Willard, for appellants.

M. D. Munn, for respondents.

DICKINSON, J.

The plaintiff William J. Woolsey is engaged in business as a contractor for the construction of buildings. He having contracted for the erection of a certain building, he executed a bond to the owners of the property (Kiefer, Macklett, and Herbst) for their protection against statutory liens, on account of labor or material furnished for the construction of the building under that contract. The defendant Bohn executed this bond as his surety. In the course of the construction Woolsey incurred a considerable indebtedness, which was chargeable by lien upon the property, and for which liens were filed. The defendant Bohn demanded from Woolsey security for his protection, on account of his liability as surety upon the bond. For this purpose Woolsey executed to the defendant his promissory note for $3,000, and with his wife, the other plaintiff, executed a mortgage upon real estate in terms securing the payment of the promissory note. The complaint alleges that the debts for which the defendant was liable under the bond have been fully paid, and by this action the cancellation of the mortgage is sought as a cloud upon the plaintiffs' title, and that the defendant be enjoined from foreclosing the same. It appears that the note and mortgage were afterwards assigned to the Bohn Manufacturing Company.

The defendants claim that they, and not the plaintiff, paid and satisfied the lien debts of the plaintiff in excess of the sum of $3,000, and that the note and mortgage constitute a still subsisting and enforceable security. They sought no affirmative relief. There is no real controversy as to the fact that the note and mortgage were given to secure and indemnify Bohn from loss by reason of his obligation upon the plaintiff's bond. At the time the mortgage was given, and before the contract was completely performed, it was agreed that Bohn should receive all money that should become payable to the plaintiff under his contract for construction, and should pay all claims against him arising from the performance of the contract which might be chargeable as liens upon the property. The referee who tried the cause found as a fact that Bohn, or the company which by consent assumed his place, in the performance of this agreement paid out more than $3,000 in excess of what they received, and that the mortgage in question is a valid and subsisting incumbrance upon the mortgaged premises for the full amount expressed therein. Judgment was therefore directed for the dismissal of the action. This appeal is from an order refusing a new trial.

The purposes and scope of this action are such that it does not involve directly the determination of the amount which the defendant may have expended beyond the amount received. An adjudication was sought only as to whether or not the claims for which the defendant Bohn was or might become liable had been fully satisfied by the application of the money of the plaintiff, so that the defendants had no right to longer retain or to enforce the mortgage for their indemnity. That was the issue made by the pleadings. The evidence in the case was relevant to that issue, and cannot be regarded as enlarging, by the consent of the parties, the scope of the action, or the proper subject of inquiry presented by the pleadings. Payette v. Day, 37 Minn. 366,34 N. W. Rep. 592, and cases cited. That issue-the matter controverted and to be decided-is not changed or enlarged by the fact that the evidence offered on the one hand to show that there was no unsatisfied obligation such as the mortgage was given to secure, and on the other hand...