Groomes v. Waterman

Canty, J. This is an action against the defendants, Waterman and Cilley, for money had and received by them to the use of plaintiff. The evidence is not returned. The case was tried by the court without a jury, and judgment was ordered for the defendants. From an order denying his motion for a new trial, plaintiff appeals. He contends that on the findings of fact he is entitled to judgment. The court found, in substance, that every month for nineteen months plaintiff assigned his wages, of $40 a month, to Cilley, as collateral [259] security for money borrowed of Mm each month, “and plaintiff obtained, each time, less than $40, but how much less is impossible to determine from the evidence. During the aforesaid time, and nearly every month, defendant Gilley, at plaintiff’s request, paid defendant Waterman from three to ten dollars. That some of this indebtedness so paid by Gilley at plaintiff’s request was for money borrowed of Waterman by plaintiff, but bow much is impossible to determine.” If the trial court could not determine these things from the evidence, how are we to without it? There is no claim or finding of usury, and we must presume that whatever part of the $40 Oilley retained from plaintiff each month he paid to Waterman to apply on what plaintiff owed Waterman, and that plaintiff and Gilley settled up their business every month at each monthly transaction as they went along. Plaintiff moved for additional findings, but we cannot tell, without the evidence, whether they should have been allowed or not. Each defendant appeared by a different attorney, and answered separately, so that each was entitled to statutory costs; but only one bill of costs was taxed, and of this plaintiff should not complain. The judgment appealed from is affirmed. G-ileillan, C. J., absent on account of sickuess; took no part. (Opinion published 61 N. W. 139.)