Garrison Field, Respondent, v. Nicholas Field, Executor, etc., Appellant

Garrison Field, Respondent, v. Nicholas Field, Executor, etc., Appellant. (Argued February 18, 1878; decided March 19, 1878.) This action was brought to recover a balance alleged to be due for boarding, nursing and caring for defendant’s testator, who was plaintiff’s mother. The referee found that the services claimed were rendered with the mutual understanding that they should be paid for, and that they were worth $4,566.66. He further found that the testator, “ for the purpose of mailing a payment on her said indebtedness, assigned to him (plaintiff) and his wife two bonds and mortgages of $2,000 each, and that $2,000, the amount of one of said bonds and mortgages, should be credited on the said claim and deducted therefrom, leaving the sum of $2,565.91 due ” plaintiff, and as a legal conclusion the referee found that plaintiff was entitled to judgment for that amount. It did not appear that the bonds and mortgages were not valid securities, or not worth their nominal value, and there was no finding of any fact excusing or justifying the omission to credit both mortgages. Held, that the facts found did not support the legal conclusion; that the finding excluded any inference that the bonds and mortgages were transferred as a gratuity, and that the judgment should be reversed on the report, as there were no facts appearing in the case which would sustain it. Calvin Frost for appellant. Amasa J. Parker for respondent. [MAJORITY — Andrews, J.,] Andrews, J., reads for reversal and new triaL All concur. Judgment reversed.