Page v. Arnold

Adams, Judge, delivered the opinion of the court. This was a suit for the balance of purchase money for a tract of land sold and conveyed by the plaintiff to the defendant. The agreement between the parties was that the defendant, in payment of the price for the land, should pay off the plaintiff’s indebtedness to Washington county, which was understood to be three hundred dollars, more or less. There was a mortgage covering one of the notes due to the county, and the other had been left out by mistake. The defendant denied that he was to pay any but the mortgage debts. [159] The ease was submitted to the court, and the court after hearing all the evidence, found a special verdict in favor of the plaintiff for the amount of the note and interest not included in the mortgage, and found, also, that judgment had been rendered on said last mentioned note in favor of the county against the plaintiff and his securities on the note and for costs. The court upon this finding gave judgment that the defendant should pay the county of Washington the amount of the judgment so recovered by the county. There were no instructions asked or given on either side, and the defendant has brought the case here asking this court to review the evidence and finding of the court below. Although the plaintiff asked for the specific relief given by the court, yet the court might, under the allegations and proof and on the special verdict, have rendered a general judgment of recovery in favor of the plaintiff for the amount of damages he was entitled to, as ascertained by the verdict. The action was purely legal aud was not a case for specific performance, and the judgment, therefore, for specific performance was informal. But it was such an informality as might be corrected on application to the court below, and such as will be corrected by this court, by ordering the entry of such judgment on the verdict as should have been rendered by the Circuit Court. The verdict is amply supported by the evidence and cannot be disturbed by us. It is therefore ordered that the judgment as rendered be set aside, and that judgment be rendered in this court in favor of the plaintiff against the defendant for the amount found by the special verdict, and for costs in both courts. Judge Wagner concurs. Judge Bliss absent.