still survive; that is, of credits which have a situs attributed to them when they are made taxable.

Judgment reversed and cause remanded.

We concur: MORRISON, C. J.; MYRICK, J.; SHARPSTEIN, J.; MCKEE, J.; Ross, J.; THORNTON, J.

DE CELIS and others v. PORTER and others.

Filed January 29, 1884.

If A. objects to receiving the money of B., still, if he receives it, and more espeeially if he uses it for his own purposes, his objection to receiving it would count as nothing in defense to B.'s action to recover it.

Where one mortgage is given as a credit on another larger one, the larger may be foreclosed without any merger of the smaller one therein. The existence of one is consistent with the payment and satisfaction of the other!

Department 2.

Glassel, Smith & Patton, for plaintiff and appellant.

Graves & Chapman, F. H. Howard, and R. M. Widney, for respondent.

THORNTON, J. In the view we take of this case, we lay out of it the stipulations of March 14, 1876, and of June, 1876, except so far as is hereinafter pointed out.. They were disregarded by the district court in pronouncing the judgment of July, 1877, which judgment was modified by this court so far as to allow the credit on the note and mortgage for $37,500 of the $5,255.30, being the amount of costs and interest thereon in the partition case of San Fernando Farm Homestead Ass'n v. De Celis et al. This allowance was for the benefit of Porter and Maclay, and was in effect an advance by the De Celis plaintiffs to Porter and Maclay. It was not intended as a gift by the De Celis plaintiffs to Porter and Maclay. They had not, previous to this action, paid any part of the sum allowed to the De Celises. The judgment as entered by the district court, under the order of the supreme court, made on the seventh day of June, 1879, allowing the sum of $5,255.30, was not set aside or this credit stricken out. Admitting that Porter and Maclay did not consent to it, they did not move to set aside. This judgment was executed, their indebtedness in the foreclosure suit was paid, and they got the full benefit of this credit. Under all these circumstances it is clear that they v.2,no.2-17

1

received so much money, which, ex æquo et bono, they were bound to refund to the De Celis plaintiffs, and that the law would imply a promise to pay this sum. It makes no difference that they did not consent to the judgment as entered in the supreme court, and by its direction in the district court. They got the benefit of the money. The amount was credited on the note and mortgage, the judgment of foreclosure was so entered, and as thus entered was executed. It is equivalent to receiving so much money which they used for their own purposes. Let it be conceded that they objected to receiving the money on the credit allowed, (a most unusual objection,) still they avail themselves of it, and cannot now be heard to object to paying it back. If A. objects to receiving the money of B., still, if he receives it, and more especially if he uses it for his own purposes, his objection to receiving it would count as nothing in defense to B.'s action to recover it. By using the money he gives all the consent required. By such conduct his objection is waived and displaced, and consent and approval take its place. It is equivalent to consenting originally, when the judgment was entered by the supreme court.

Although it does not clearly appear, by the judgment finally entered by this court, why the credit was allowed, still it is found that in this court a form of decree was prepared by order of the court, (called in the findings the Bishop judgment,) in which blanks were left for the amounts to be inserted. After the preparation of the form of decree by Mr. Bishop, Porter and George H. Smith, Esq., attorney for the plaintiffs, (the De Celises,) met to determine the amounts, and the result of their conference was that Porter agreed orally that if the judgment for costs in the partition case was allowed as a credit in the Bishop judgment, that he would carry out the contract made June 14, 1876, and thereupon Smith agreed to allow this credit, and it was accordingly allowed and inserted in the judgment. This revived the stipulation of June 14, 1876, and the contract made then, including the mortgage sued on in this action, as far as regards Porter, and he became bound by all the obligations of such contract which he had by it assumed. In fact, the main object of such stipulation and contract, as between Porter and the other contracting party, to whose rights the plaintiffs De Celis has succeeded, was to secure the credit of the partition costs in the mortgage then in suit, and to obtain security for the repayment of those costs, and anything allowed beyond the amount of costs. Afterwards, when Maclay objected (on what ground does not appear) to the Bishop judgment, and the same was modified, but still allowed the credit above mentioned, though Porter objected to it, (for what reason we are not informed,) still, as he received the consideration of the agreement made between him and the plaintiffs at the conference in regard to the Bishop judgment, we do not think that we should be justified in holding that he was thereby let out of his agreement reviving the

contract made between him and Smith, representing the De Celis plaintiffs. As far as we can get any light from the findings as to the objections of Porter and Maclay to the judgments above mentioned, they seem to have had relation to the state of the accounts between themselves, in which the De Celis plaintiffs had no interest. As said above, it appears from the findings that the judgment as finally entered by the order of this court was fully executed, and Porter and Maclay received all the benefit of the credit.

It appears from the above that the mortgage sued on was sustained by a sufficient consideration in its inception, was also sustained by the agreement made at the conference on the Bishop judgment that such consideration has never failed, but that the full benefit of this agreement has been received by Porter, the mortgagor, by the credit in the decree and the sale under it, by which the indebtedness secured was paid off in full. The court held that Maclay's indebtedness, which was secured by Porter's mortgage, was barred by the statute of limitations, as it arose from a parol promise. We do not think that it is barred. The action to recover it did not accrue earlier than the seventh day of June, 1879, when the final judgment was entered in the supreme court, and this action was commenced on the fourteenth day of July, 1880, on which day the complaint was filed.

It is contended that the mortgage sued on was extinguished by the foreclosure of the mortgage for $37,500. We cannot perceive how this can be. The mortgage in this action originated from a credit on the foreclosed mortgage. How it can then be extinguished or merged does not appear. The ground of the existence of the mortgage herein is the credit allowed on the one forclosed. The existence of one is consistent with the payment and satisfaction of the other. How, then, can there be extinguishment or merger of any kind?

With regard to the question of parties arising on the demurrer to the complaint, we think it only necessary to say that, in our view, the De Celis plaintiffs are the proper plaintiffs in this action, by reason of the assignment of Eulogio to them of the indebtedness herein, which carried the mortgage and the distribution of the indebtedness to those plaintiffs by the probate court. On the return of this cause to the court below, the complaint may be amended by striking out all the parties plaintiff except De Celis plaintiffs, and the court will then proceed to enter judgment for the De Celis plaintiffs, foreclosing the mortgage sued on herein; and if, on the sale of the property mortgaged, any deficiency arises, that such deficiency be docketed, threefourths of it against Porter and the remaining one-fourth against Maclay. The amount of the indebtedness for which the mortgage herein is security is $5,255.30, with legal interest from the seventh day of June, 1879.

The judgment is reversed, as well as the order denying the motion for a new trial, and the cause remanded with direction to the court

below to enter judgment in favor of the De Celis plaintiffs against Porter and Maclay as above indicated, the elements of which judgment distinctly appear in the findings. If it becomes necessary to protect the interest of the other persons improperly joined as plaintiffs herein, the court can, on their motion, require the money to be paid into court, and make such order distributing it as shall appear to be proper in view of the rights of all the parties.

Ordered as above.

We concur: SHARPSTEIN, J.; MYRICK, J.

PAIGE V. CArter.

Filed January 29, 1884.

Where the date of the delivery of a note is not material, the exclusion of evidence In regard to it is immaterial.

A witness may refresh his memory with a memorandum made by himself or under his direction at any time when the fact was fresh in his memory.

A defendant cannot recover under his counter-claim for any services rendered after the commencement of the plaintiff's action.

Department 2.

Schell & Treat, for plaintiff and appellant.

W. C. Turner and S. L. Carter, for defendant and respondent.

SHARPSTEIN, J. If it would make any material difference whether the note sued on was delivered at the date it bears on its face, or at some subsequent time, evidence tending to prove that it was delivered at the latter date should have been admitted. But, in view of the plaintiff's own testimony, we think the date of delivery of the note immaterial. One of the defenses set up by the defendant is that after making the note sued on he compromised with all his creditors, including the plaintiff, by agreeing to pay them 25 per cent. of their respective claims, and that they all accepted that sum in full satisfaction of said claims. The date of that agreement is posterior tothe date which the note bears on its face; but the plaintiff claims that the note was not delivered until after said agreement was made, and therefore was not affected by it. By the agreement, all the creditors of the defendant, including the plaintiff, promised to accept said 25 per cent. of the amount of their claims in full payment and satisfaction of all claims, demands, or other indebtedness, of whatever kind or nature, then due them from defendant; and plaintiff testified

on the trial that “all the indebtedness of the defendant had matured prior to the date of the agreement of compromise. All his indebtedness to me, of whatever kind, whether this note in suit or others, or whatever it was, all had matured prior to the date of the compromise referred to." If the defendant fulfilled the agreement on his part, the indebtedness for which the note was given was paid, satisfied, and discharged before the commencement of this action. That indebtedness had matured before the date of the compromise agreement, and was clearly included in it. If the defendant did not fulfill on his part, the indebtedness for which the note was given was not satisfied and discharged. The date of the delivery of the note being immaterial, the exclusion of evidence in regard to it, and the denial of the plaintiff's motion to amend his complaint, by alleging a delivery after the composition agreement was entered into, could not prejudice him. The objection to the defendant's referring to a memorandum to refresh his memory while testifying was properly overruled. Although not made at the time the occurrences took place, nor by witness himself, if made under his direction at any time when the fact was fresh in his memory, it was proper to allow him to refresh his memory by it. Code Civil Proc. 2047. But in support of his counter-claim he should not have been permitted to testify to work done for the plaintiff after the commencement of the action; and the testimony in regard to the relations which had existed between plaintiff and defendant was irrelevant, and the objections to its introduction should have been sustained.

In regard to the plaintiff's alleged cause of action, the court, in effect, charged the jury (1) that the note sued on was included in the composition between the defendant and his creditors, of whom the plaintiff was one; (2) that the plaintiff agreed to advance the sums to be paid under that agreement to creditors other than himself, and to advance to defendant the amount necessary to pay the expenses of harvesting and marketing defendant's wheat crop of that year,-the same to be shipped to and sold by plaintiff in order that he might reimburse himself for said advances; (3) that plaintiff made said advances, and defendant shipped said wheat to plaintiff, who sold the same for $1,383.77 more than the aggregate of the sums advanced by the plaintiff; and if said excess was equal in amount to the sum due plaintiff under said composition, it was a full satisfaction of the note sued on.

These facts are doubtless established by the evidence beyond controversy; and if the fact of the plaintiff's having realized from the sale of the wheat a sum sufficient to reimburse him for his advances, and to pay him 25 per cent. of the amount due on said note at the date of said composition, satisfied and extinguished the indebtedness for which said note was given, there is nothing in the charge, as we view it, of which the plaintiff can justly complain. Although by the