Merker v. Lake Region Packing Association

Per Curiam.

This suit was to foreclose a mortgage incident to which an accounting was prayed for and had. An amendment to the bill alleged mutual accounts and debts between the parties and averred that after application of all fruit returns that defendant was withholding from plaintiff the amount of $508.97 that was due on the mortgage.

The mortgage itself specifically provided for the application of all proceeds of the mortgagor’s fruit sales to the “payment of said note and interest, or any balance due on same, or any renewals thereof.”

Whether all fruit sales had been properly credited was necessarily involved in the accounting between the parties and it appears that certain fruit sales were entered up as “retains,” as to which the certificate for $223.42 was evidence. Such sales were not credited as required by the mortgage. What the rights of the parties are under the certificate as an independent agreement is not involved or decided in this case. The proof of the retain certificate for other than the evidentiary purpose of proving fruit sales not credited as required by the mortgage,. was eliminated from the case when the Chancellor struck out that part of the answer undertaking to set up the certificate as an independent counter-claim.

But the striking of the certificate as an independent counter-claim did not destroy the procedural right of the mortgagor to use the certificate as evidence of fruit sales that should have been credited on the mortgage debt under the terms of the mortgage itself, absent some showing that the agreed credit had been waived, or the right to it lost, by virtue of the effect of the certificate as an independent contract, conceding that it is competent for that purpose, a point not necessary to be decided.

We adhere to the allowance of the credit for $233.42 but withdraw that part of the opinion directing the allowance of same with interest.

Extraordinary rehearing denied.

Whitfield, P. J., and Brown and Davis, J. J., concur. Ellis, C. J., and Terrell and Buford, J. J., concur in the opinion and judgment.