Respondents in their petition for rehearing invite our attention to several points that were not mentioned *Page 632 in their brief or suggested in the oral argument. These suggestions, however, have received careful attention, but they have not shaken our confidence in the correctness of our former conclusion.
As to the contention that a certain $180 could not be applied to the payment of the interest due, and therefore that appellant was in default according to her own showing, it is. sufficient to refer to the testimony of Mrs. Roberts that "Mr. Faw said we would have an interest, interest in the $200, until that comes back to my sister-in-law and until that is paid back, or if it is not paid back it can go in the end to help pay up the difference that may be necessary to come from you, your sister-in-law." She afterward testified that $20 of it were handed back to her by Mr. Faw, leaving a balance due from Faw of $180. Giving full credit to her testimony, then, the situation is that appellant was required to make certain payments of interest to Faw in order to be entitled to a conveyance of the property. Faw owed her $180 which if applied on said contract of sale would prevent a default. It would certainly be a reproach to the law if one debt could not be set off against the other. Indeed, the two demands, as far as they equal each other, are deemed compensated. (Code Civ. Proc., sec. 440; Freeman v. Seitz, 126 Cal. 293, [58 P. 690].)
The petition is denied.
Chipman, P. J., and Hart, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 19, 1909. *Page 633