Jobe v. Mondereau

Opinion by

Trexler, J.,

This is a suit brought to recover the sum of $650 which the defendant received upon repayment of a mortgage loan due the plaintiff and which it is claimed the defendant never accounted for. When Minnie Jobe died there was no evidence of any indebtedness existing between defendant and her. The mortgage was satisfied of record and it did not appear to whom the money was paid. The proof of an existing debt is sought in a conversation had between decedent’s executor and the defendant in which the latter admitted that he had collected the money secured by the mortgage and had not paid it to decedent. The defendant does not deny making this admission but testified that he at the same time told the executor that the money he had received was immediately reinvested in another mortgage giving the details. The executor denied that anything of the kind was said. This raised a question as to the veracity of ■ the two parties to the conversation. The defendant in corroboration of his statements offered in evidence a mortgage bearing date the day following the satisfaction of the first mortgage. In the new mortgage the name of the decedent appears as one of the mortgagees and the' sum payable to her is precisely the same. The name Rushmore appears as one of the mortgagees in the first mortgage and likewise appears in the second.

We have thus four factors bearing upon the question whether the proceeds of the first mortgage went into the second, the identity of the mortgagee, the proximity of' the date, the likeness of the amount and the presence of the same comortgagee. . We may also add that defendant’s name as attorney is appended to the certificate of the residence of the mortgagees in the second mortgage. The courts excluded the offer of the mortgage. We think it was competent. There was sufficient evidence to submit the matter to the jury as to whether the facts bore out the statement made by the defendant that he had reinvested the money in the second mortgage. It was some corroboration of defendant’s story. Had there been a long interval of time and evidence of frequent loans, the similiarity pointed out above of tbe two transactions may have been supposedly fortuitous, but tbe one transaction following the other at an interval of but one day coupled with the other facts above set forth, we think justify the inference, if the jury would so look at the matter, that the same money went into the second mortgage that came from the first.

There is another matter in the case which we need but give passing notice. The defendant offered what he claimed to be a book of original entry in which there is an item showing that the $650 of Minnie Jobe was re-loaned to William Knolle. The account does not bear any of the indicia of a book of daily entries. It is merely a memorandum of moneys received and paid out by the defendant entirely made up of cash items and not containing any charges against any person. The court properly excluded it.

The first three assignments of error are sustained. The judgment is reversed with a venire facias de novo.