The expense of defending the trespass suit was a part of the expense incurred in operating the lot. Holmes is in no position to contend, and does not contend, that the trespass was wilful. The trespass was committed by him, and it is fair to assume that he supposed the tract in controversy was a part of the lot he purchased with money furnished by Woodward. For the proceeds of the lumber cut on the disputed tract Woodward has accounted, or is accountable, to him. The trespass suit was against them jointly, and Woodward, having paid the judgment and borne the expense of the defence, is entitled to judgment for the larger sum ($777.84).
In the equity suit, Holmes is not entitled to a decree for the conveyance of the lots without performing the contract on his part. The giving of his promissory note in 1886 was not a payment *Page 496 of the amount then due from him in the absence of an agreement to that effect, and the amount of the prior indebtedness was not extinguished. Moore v. Fitz, 59 N.H. 572, and authorities cited. No suggestion has been made that the mortgage has become foreclosed. The order at the trial term was, that Holmes pay whatever sum is due on the mortgage note. If the mortgage has become foreclosed and the mortgage property was of sufficient value to pay the note, then nothing is due upon it; but if it is insufficient, the balance due can be ascertained upon a hearing at the trial term.
Exceptions overruled.
CARPENTER, J., did not sit: the others concurred.