OPINION OF THE COURT This is an action for the foreclosure of a chattel mortgage, resulting in a decree in favor of appellee (plaintiff) against appellant (defendant), from which appeal has been taken. The plaintiff introduced the note and chattel mortgage, showing that the same were unpaid and that the note was a renewal note, and rested its case. The defendant alleged and proved, without contradiction, that the original note of one Harlan, signed by him, a renewal whereof was the note sued on, was signed by him upon the express consideration and contract of plaintiff that it would turn over to him the cattle, upon which the chattel mortgage of said Harlan was *Page 357 executed, which cattle he should sell at private sale and apply the proceeds to the payment of the note, and the overplus, estimated at $1,000 by plaintiff, was to be divided equally between plaintiff and defendant; that the plaintiff failed to turn over the cattle, and defendant notified plaintiff of election to rescind the contract; that no consideration of any kind moved between the parties other than the promise of plaintiff as above set out; that no consideration moved between the parties for the signing of the renewal note, and that defendant was induced to renew the note by threats of plaintiff to sue him on his certain other indebtedness to plaintiff, but no contract for forbearance was made. At the close of the evidence, plaintiff moved for judgment, which motion was granted and the decree entered. Proper exceptions to the findings were made, and proper requests for findings were presented to save all the questions raised. The court found:
"That the defendant, C.E. Anderson, for a valuable consideration, executed the notes and chattel mortgages sued on, and renewed such indebtedness from time to time by the execution of the various instruments described in the complaint, and that he likewise paid a pasture bill upon said live stock, and paid other expenses in connection with the same, and in connection with the recording of the chattel mortgage sued on; and that the defendant is barred and estopped on account of his acts and conduct, as appears from the evidence, from recovering in this suit."
[1] 1. Just how the court found that defendant received a valuable consideration for the execution of the note is hard to understand. There is no evidence to support such a finding, and, on the other hand, the evidence is all the other way. The court was in error.
[2] 2. The finding of estoppel is erroneous. In the first place it was not pleaded; and, in the second place, there is no evidence upon which estoppel could be founded. There is not a word of testimony that the plaintiff relied upon any act of defendant, and thereby was induced to take a position to its detriment. In such case, there can be no estoppel. See Doran v. *Page 358 First National Bank of Clovis, 22 N.M. 236, 160 P. 770; King v. Stroup, 22 N.M. 241, 160 P. 367.
It follows that the judgment is erroneous, and should be reversed and the cause remanded, with directions to set aside the judgment and render judgment for the appellant; and it is so ordered.
BOTTS and FORT, JJ., concur.
On Motion to Modify Judgment.