The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 39
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CARSON V. HURT
tiff refused to accept it, making demands in excess of what was in
fact due. Under the circumstances, it would be inequitable to charge
up against the subpurchasers the attorney's fees for which the pur-
chaser became responsible. The conclusion is reached that each one
of the appellants should, in order to secure a release, pay such an
amount as would now be necessary for him to pay, including interest,
if each of the subpurchasers who secured releases had, for such re-
lease, paid to the plaintiff the entire amount which the plaintiff could
Appellants claim that the amount of the judgment is excessive. The
transactions ran over a period of years, and involve many separate
payments of money. The court permitted the introduction of a state-
ment made by an auditor, which became the basis for the judgment
which was rendered. In addition to this there was introduced the day-
book (in the form of a journal) and ledger of the plaintiff. There was
also introduced a statement as to releases made by him as a part of an
answer to an interrogatory. The daybook and ledger were made by
the plaintiff contemporaneously with the transactions from which he
received money. He testifies:
"These books, my Journal and ledger, are my records as I kept them regard-
ing lands I released. When I would give a release, I would enter it on my
daybook here, showing what a man paid, and the section of land and the
number of acres, and then I transferred those items into the ledger."
The daybook entries are copied into the record, accompanied by
memoranda indicating the differences between the daybook and the
ledger. These daybook and ledger entries do not correspond with
the result of the auditor's work. It is insisted by appellants that the
account books of plaintiff show payments to the amount, exclusive
of the payment of the notes assumed by the vendee, of $201,706.89,
and they claim that the release statement shows (with items which
should be added) payments to the amount of $207,428.73. The amount
actually shown by the daybook is $178,685.59. Appellants insist that
an item of $21,772.80, dated November 18, 1907, is shown by the day-
book. No credit for this amount is given. It is charged up against
the owners of the land for releases, but there is no corresponding cred-
it of payment. It is reasonably apparent, from the circumstances and
the entries in the books, that, prior to that time, $50,000 having been
paid, the release was demanded and made on account of such pay-
ment. This item, together with the item of $1,248, under date of May
1, 1914 (which is also charged up, but for which no credit is given),
constitute the difference between the amount claimed by appellants to
have been paid according to the daybook, and the amount which the
daybook in fact showed. The release statement, as introduced in evi-
dence, shows only $116,113.66. This statement is entirely valueless in
reaching the amount of money due on the debt. It not only omits the
amount of payment in cash primarily made, for which no releases were
demanded, but also omits 12 or more items of payments for releases
that are indicated by the daybook.
While appellants' insistence that the amount due is either $32,358.61
or $38,070.45 cannot be sustained by the record, a careful examina-
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The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918., legislative document, 1918; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38821/m1/54/: accessed September 19, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.