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: 40
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250 FEDERAL REPORTER
tion of it discloses that the auditor's statement does not include every
payment indicated by the books of the plaintiff. Leaving out of con-
sideration the interest items, the auditor gives credit for $5,630.41 less
than is shown by the books. A careful checking of the two accounts
discloses the items not credited in the auditor's statement. A credit
on October 22, 1908, "By draft, $2,416.25," is not in the statement.
On May 14, 1912, a credit is given, "By checks and drafts 6/27,
paid 8/26, $4,448.00." Of the amounts going to make up this $4,488,
the release for one tract, amounting to $1,761.24, is included in the
auditor's statement and the balance, $2,727.76, is not. On Febru-
ary 7, 1913, credit is given, "By check, part payment on one-half sec-
tion 10, Block C, $504.00."' This amount is not credited in the state-
ment. These credits in the day book, for which no corresponding
credit in the audit statement is made, amount to $5,648.01. The audit
statement shows a payment on July 22, 1907, of $17.60, which does not
appear in the daybook. Subtracting this, the difference between the
amounts which the plaintiff states he has received by the entries in
his daybook exceeds the amounts credited in the auditor's statement by
$5,630.41. The daybook shows on May 30, 1911, a credit of $15,386.-
55. It appears that this was originally $21,000 on the daybook, and it
still appears as that sum in the ledger. Appellants insist that the plain-
tiff should be charged with the $21,000. The correspondence incor-
porated into the record shows that on May 30, 1911, the date of the
entry, Hurt drew a draft, with release attached, for $21,000. Subse-
quent letters indicate that this draft had not been paid as late as July
7th thereafter. In the absence of additional proof, it will be assumed
that the credit of $21,000 was made when the draft was drawn, and
that subsequently, the draft not having been paid, the entry in the day-
book was changed to correspond.
The court suggests that the statement of evidence was not approved
by the District Judge. Counsel for appellee, understanding, doubtless,
the conditions by which this was brought about, does not undertake to
take advantage of this fact. It is also suggested that the principal
debtor acknowledged a greater indebtedness than that found due.
Such an acknowledgment is apparently in conflict with the facts, and
ought not to bind the other defendants.
The defendants John Carson, T. E. Jensen, and E. C. Shoemaker
impleaded the First International Bank of South Bend, Wash., recit-
ing that they had purchased certain of the lands in controversy, and
that these lands had been conveyed to M. J. Johnson, as trustee for
themselves, that said Johnson had executed a mortgage to the first
International Bank, but that he had, in fact, no right to make the mort-
gage, and that it was of no effect. The First International Bank filed
an answer, and disclaimed any interest in the land. The defendants
complain at the failure of the judgment to remove this cloud from
their title. No reason appears why this should not be done. This
would not require a reversal; the necessary modification in the judg-
ment could be made here.
The judgment should be further modified as hereinbefore indicated.
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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/m1/55/: accessed March 18, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.