Appeal from a judgment for the plaintiff. This is a suit by the assignee of a note of date May 9, 1898, executed by the defendants to one oJyce, the plaintiff's assignor, for the sum of twelve hundred dollars, with interest at the rate of eight per cent per annum from date, compounded *Page 711 quarterly. The complaint alleges that no part of said promissory note, or the interest thereon, has been paid, and that the amount thereof, with interest, is now due and owing from the defendants. The answer denies these allegations, or that there is due to the plaintiff the amount claimed or any amount, and further alleges that the amount mentioned in the note, with interest, has been fully paid and discharged. There is also what is called a "supplemental and amendatory and additional answer," alleging that the note executed to Joyce was secured by a chattel mortgage upon certain horses; and also setting up the equitable defense stated below. This document, as it is written, is without coherence or sense, by reason of the words "plaintiff" and "plaintiff and his wife" being written therein, instead of the words "defendant" and "defendant and his wife," — which were plainly intended. Correcting it in this respect, it appears from the allegations therein contained that certain lands of the defendants mortgaged to one Hawkinson had been sold under foreclosure to the mortgagee, and that there was an agreement between defendant and Joyce for the latter to redeem from the sale, and thus to acquire title and to hold the same as an additional security for the note in suit and the money paid by him for redemption. It is further alleged that Joyce sold the property for the sum of sixty-five hundred dollars, which he has kept for his own use. It does not appear what amount was paid by Joyce for the redemption. But it is alleged, in effect, that at the time of the sale the amount due on the note did not exceed the sum of five hundred dollars, and that the proceeds of the sale were sufficient to satisfy the defendants' indebtedness to the plaintiff, and leave the latter indebted to the former; and, in the absence of special demurrer, this must be regarded as sufficient.
The findings of the court are, in effect: That the note sued on was executed by the defendants to Joyce as collateralsecurity for the payment of a note previously executed to him by the defendant Donegan for the sum of two thousand dollars, of date June 1, 1897; that some months prior to the execution of the note sued on (March 5, 1898) there was an account stated between Joyce and Donegan, showing a balance on the older note of $1,448, bearing interest at the rate of eight per cent per annum; "that on the 26th day of November, *Page 712 1900, the sum of $660, and no more, was paid on account of said amount due, as per said account stated"; and "that the amount of the principal and interest now due and unpaid, according to the terms of said account stated, and the said note sued upon herein, is $1,416.62"; for which amount judgment was entered.
The several objections urged by the appellants to the judgment are, in effect: That the court has failed to find upon the issues raised by the "amendatory answer"; also, that it has failed to find on the issue as to payment raised by the original answer; and that the actual findings on which the judgment is based are outside the issues in the case.
As to the issues referred to in the first point, there is obviously no finding; and the only question, therefore, is whether the case is one in which it is to be presumed, in support of the judgment, that there was no evidence on those issues. The rule on this point, as expressed in the leading case, — after very careful consideration, — is: "The findings must be sufficient to support the judgment, and must contain nothing inconsistent with it, but a failure to find upon some issue, a finding upon which would simply have the effect of invalidating a judgment fully supported by the findings made, will not be held ground for reversal, unless it is shown by statement or bill of exceptions that evidence was submitted in relation to such issue." (Himmelman v. Henry, 84 Cal. 106, 107, [23 P. 1098]; Winslow v. Gohransen, 88 Cal. 451, [26 P. 504]; Dolliver v. Dolliver, 94 Cal. 646, [30 P. 4]; SouthernPacific R. R. Co. v. Dufour, 95 Cal. 621, [30 P. 783], Paterson, J.; Estate of Carpenter, 127 Cal. 587, [60 P. 162];Eva v. Symons, 145 Cal. 205, [78 P. 648].) The rule is stated somewhat more broadly in some other cases, but what is said by the court must be construed with reference to the facts involved, which were such as to bring the cases within the application of the rule as originally expressed. (Woodham v.Cline, 130 Cal. 499, [62 P. 398]; De Tolna v. De Tolna,135 Cal. 578, [67 P. 1045]; Horwege v. Sage, 137 Cal. 539, [70 P. 631].)
The rule is to be understood, therefore, as applying only to cases where there are findings sufficient to support the judgment. Nor can it well be carried further without abrogating altogether the provisions of sections 632 and 634 of the Code *Page 713 of Civil Procedure, and restoring the law to what it was under the statutory provisions previously existing, which those sections were enacted to repeal. (Practice Act, sec. 180.) The actual question involved, therefore, is whether there is a sufficient finding on the issue of payment made by the allegations of the complaint and the denials of the answer — the other allegations of the complaint being admitted. On this issue, indeed, the burden of proof was on the defendants; but it will be assumed for the purposes of this decision that a finding upon the issue was necessary. (Estate of Carpenter,127 Cal. 587, [60 P. 162].) On this question the findings are somewhat complicated, but it is found, in effect, that the only payment made upon the note in suit was the sum of $660, paid November 26, 1900, on the original indebtedness. For this the note in suit was given as collateral, and all that can be recovered is the principal debt. Calculating the amount due upon this, with simple interest at eight per cent per annum to the date of credit, the amount due thereon, and consequently on the note in suit, would be $1,103.34; and this, with simple interest at the rate of eight per cent per annum, would amount at the date of the finding to the sum of $1,364.46; which is $52.16 less than the amount found to be due. The issue of payment seems, therefore, to have been fully disposed of. The amount found to be due, indeed, is $52.16 in excess of the amount shown by the facts found, but this error can be cured by modifying the judgment.
With regard to the equitable defense set up, it must be presumed, therefore, there was no evidence offered to support it.
As to the third point, the findings seem to touch upon points outside of the issues, but the facts found are pertinent to the ultimate issue as to payment, and all that can be objected to them is that the court, or the counsel who drew them, pursued an unnecessarily roundabout way of disposing of that issue.
The case is remanded to the lower court, with directions to modify the judgment as above indicated; and as thus modified it will stand affirmed.
Allen, J., concurred. *Page 714