Montandon v. Wingert , 5 Idaho 185 ( 1897 )

HESTON, J.

One Mary Le Grande, being in failing health, and desiring to consult physicians in Salt Lake City, for the purpose of procuring such money as was necessary for her expenses to Salt Lake City, procured a loan from plaintiff. It seems that there was something due and owing from Mrs. Le Grande to plaintiff for legal services theretofore performed by the plaintiff for said Le Grande, and upon the advancement by plaintiff of the sum of fifty dollars to said Le Grande she (Le Grande) executed to plaintiff a mortgage, wherein she acknowledges an indebtedness due from her to the plaintiff of $110, viz., fifty dollars for money borrowed, fifty dollars for services theretofore rendered to said Le Grande, and ten dollars for incidental expenses paid by plaintiff for said Le Grande. The defendant is the purchaser of the mortgaged property, with notice. This action is brought to foreclose the mortgage. Defendant, by answer, denies any indebtedness thereunder except the fifty dollars borrowed money, which he claims has been- paid, and which payment is admitted by plaintiff. TTpon the trial a verdict was rendered for the defendant, upon which judgment was entered. From such judgment, and from the order of the court overruling plaintiff’s motion to set aside the verdict, this appeal is taken.

The first error claimed by appellant is to the action of the court in “committing the cause for trial as- a law case.” There is nothing in this contention. If it were an equity case, an issue of fact having been raised by the pleadings, the court was at liberty to invoke the interposition of a jury to try such issue.

The next error averred by appellant is the “overruling plaintiff’s objection to the introduction of any evidence by defendant under his answer.” This contention cannot be sustained. The answer averred payment. To say that defendant could not offer evidence in support of such averment is simply absurd.

We have carefully examined the record, and we cannot find any evidence that will warrant or support the verdict. The plaintiff offered the mortgage in evidence, which shows an indebtedness from Le Grande to plaintiff of $110, acknowledged by Le Grande, and there is nothing in the record to controvert it except the payment of fifty dollars by defendant, which is acknowledged by plaintiff. This case does not come within the rule in McCarty v. Canal Co., 2 Idaho, 245, 10 Pac. 623, nor of O’Connor v. Langdon, 3 Idaho, 61, 26 Pac. 659. In this case the plaintiff proved his case, and there was no evidence to disapprove it. The judgment of the district court is reversed, and cause remanded.

Sullivan, C. J., and Quarles, J., concur.