The questions raised by the motion for a nonsuit are the principal questions which are presented by this appeal for our determination.
It is claimed that a purely legal action, or action at law, cannot be maintained on the allegations of this complaint; but that the cause of action therein stated is one in equity for an accounting. The case is simply this: A debtor transfers to his creditor certain notes and mortgages as security for the debt, and the latter agrees to use due diligence in the collection thereof, , to retain the amount of the indebtedness and reimburse himself for the costs and expenses of making the collection, out of the proceeds, and to pay over the surplus to the debtor'. The creditor makes the collections, and, after deducting the amount of such indebtedness, costs and expenses, he has a surplus in his hands. This is precisely the case made by this complaint. Can it be doubted that the party entitled to such surplus may maintain an action at law to recover it ? That he may do so seems too clear for question or argument. It must be held, therefore, that the complaint states a good cause of action at law.
*626The other ground upon which the nonsuit was asked is thus stated in the brief of counsel: “ There was no evidence given by the plaintiff to show that the defendant had collected anything, nor as to the amount of costs and expenses in collecting, so that when the plaintiff rested it was- not possible for the jury justly to find that any sum was due from the defendant to the plaintiff.”
It seems scarcely necessary to say that if the defendant took a conveyance of the mortgaged premises from Rugg in his own right, and released the mortgage debt without any agreement with the plaintiff in relation thereto, he is liable to account to the plaintiff for the amount of such debt. The court so instructed the jury, and the instruction is undoubtedly correct. We think that the answer tenders but a single issue of fact to be determined by the j ury, which is, whether the alleged special agreement set out therein was entered into by the parties, and that every other fact essential to the plaintiff’s right to recover is therein admitted, except, perhaps, the demand of a statement of the business, and probably it was only necessary to prove that fact in order to fix the time when interest should commence on the claim of the plaintiff. On the issue as to whether such special agreement was made, the burden of proof was necessarily upon the defendant, who asserted the affirmative of the issue. Hence it follows that the plaintiff made a prima facie case before he rested.
But it is said that the plaintiff must take the answer as a whole — that he can not be permitted to rely upon a fact stated therein which may be favorable to him, and use it as an admission, and at the same time reject other facts therein stated which are unfavorable to him. That is to say, if the plaintiff would avail himself of the averments in the answer to the effect that the defendant took the conveyance of the land in his own right and for his own use, he must also admit the making of the special contract stated in the answer. But in several cases this court has taken a different view of the law, and has held *627that if a fact be expressly admitted in any part of tbe answer, sucb fact is to be taken as trae against the defendant; and the plaintiff is relieved from the necessity of proving it; and this although it may be controverted in some other part of the answer. The principle must necessarily be the same where the fact is stated by way of confession and avoidance, as in-this case. Sexton v. Rhames, 13 Wis., 99; Hartwell v. Page, 14 id., 49; Orton v. Noonan, 19 id., 350; Farrell v. Hennesy, 21 id., 632. In this answer there is an express averment' that the defendant purchased the land in his own right and for his own use; and this relieved the plaintiff of the necessity of proving that fact in the first instance, notwithstanding the answer further averred that he did so because the plaintiff had theretofore released to him all claim on the notes and mortgages, or the proceeds thereof.
A somewhat different view seems to have been taken in The Troy & Rutland R. R. Co. v. Kerr, 17 Barb., 581; but the rule as above stated is now too well settled in this state to be disturbed'by judicial decision.
The motion for a nonsuit was properly denied; and in the instructions to the jury, the learned circuit court laid down the law in accordance with the foregoing views.
It should be observed that if any costs or expenses of collection accrued, that is matter of defense, and it was not necessary for the plaintiff to make any averment or offer any proof on the subject.
The question whether the defendant took the conveyance of the Rugg property by and with the consent of the plaintiff, and without any agreement that the defendant should allow the plaintiff the full amount of the mortgages thereon, was submitted to the jury, who were instructed, as requested on behalf of the defendant, that if they found such to be the fact, although they should fail to find that the special agreement set up in the answer was entered into, the plaintiff could not recover.
The following instruction was asked on behalf of the defend*628ant, but was refused: “ That as the plaintiff, in his letter to the defendant of the date of November 24, 1861, consented and advised the defendant to take a deed of the property from Rugg, and the defendant having done so, he became a trustee or mortgagee in possession of that property, and the plaintiff is not entitled to recover in this action.” The fault in the proposed instruction is, that it entirely ignored the testimony which tended to show that such consent or advice was given with the express qualification that the defendant must account to the plaintiff, if he took the conveyance, for the full amount of the mortgage debt. The court properly refused to give it.
As before remarked, the testimony on the vital question in the case is very conflicting; and were we required to decide the question of fact, we might and probably should be in great doubt as to which way the testimony preponderates. But it is not our province to decide that question. The jury have determined it, after being fairly and correctly instructed in the law of the case; and it would be a usurpation of an authority which the law has not conferred upon us, were we to disturb their verdict.
The judgment of the circuit court must be affirmed.
By the Court. —Judgment affirmed.