Schmemann v. Rothfuss ( 1881 )

Marston, C. J.

We can discover no valid objection to the question ashed the witness Rothfuss, the plaintiff, as set forth in the first assignment of error. The plaintiff could properly be interrogated as to each and every conversation he had with the defendant regarding the transaction in controversy. Especially is this so in the present case where it was claimed, and evidently not without reason, that the defendant was endeavoring to deceive the plaintiff and prevent him from having any interview with his debtor.

The second assignment of error relates to the refusaL of the court to instruct the jury according to the defendant’s request. This was fully covered in the instructions given. In substance the instructions given were that if the plaintiff at the time the payment referred to was made, knew that the interest due upon his mortgage had been paid, and that his instructions to the defendant Schmemann were to foreclose because of non-payment of the principal, under such circumstances he could not recover back the balance paid by him for services in the foreclosure. The court also instructed the jury, and very properly, that if the plaintiff in this case was informed by Schmemann that the interest had not been paid him, when in fact it had, and Schmemann was thereupon instructed “if this interest is not paid,go on and foreclose,” and the mortgage was foreclosed not because of nonpayment of interest, that for such services payment made might be recovered back, if made in ignorance of the facts. Indeed, a pretty clear case is required to enable a party to retain the profits derived from his own wrongful and deceitful act.

The judgment will be affirmed with costs, and an additional allowance of thirty dollars will be made the defendant in error for the damages sustained by him in consequence of the delay in bringing this case here; the errors assigned being considered frivolous.

The other Justices concurred.