Tebbs v. Weatherwax

Norton, J. delivered the opinion of the Court—Cope, C. J. and Crocker, J. concurring. The Court by whom this action was tried without a jury finds as one of the facts that the order was accepted with the understanding at the time that it was to be paid out of any money that might be collected on the note of twelve hundred dollars. The testimony as to this fact is conflicting, and in such cases the finding is conclusive. The objection that the evidence to prove this fact was parol and inadmissible to vary the terms of the written acceptance cannot be raised here for the first time, after the evidence had been given in the Court below without objection. (Hobart v. Dumerits, 3 Ind. 346; McCloud v. O’Neall, 16 Cal. 392.) It is also found as one of the facts that no part of the money out of which the order was to be paid had been collected by the defendants. The fact that the defendants had at one time assigned all their right, title, and interest in the judgment of which this money formed a part, as collateral security for a debt, without designating which part was held by them for the account of Wolfe, and the fact that one of the firm in his schedule in insolvency mentioned this judgment as assets of the firm, without any reservation of the portion for which they were accountable to Wolfe, do not prove that any money was in fact collected on the judgment by the defendants, nor are they facts of a character which estop them from showing the truth in that respect. Nor is the fact that the defendants at the time of the transfer of the order to the plaintiff claimed an offset of six hundred dollars inconsistent with the fact [61] that they were only to be liable on then- acceptance for so much as they should collect on the note. The offset would be applicable whenever their indebtedness should become fixed by a collection of the amount of the note, and the claim of the offset then made was proper as a notice to the plaintiff that any liability that might arise against the defendants would be subject to that deduction. The judgment is affirmed.