Jane Holmes, Executrix, etc., Respondent, v. Allen Wood, Appellant

Jane Holmes, Executrix, etc., Respondent, v. Allen Wood, Appellant. (Argued February 7, 1882; decided February 28, 1882.) The complaint in this action alleged an indebtedness to the defendant, of $12,500, payable according to the terms of a promissory note therein set forth; that the plaintiff paid, during a period of time particularly specified, certain sums of money; and that on the 27th of January, 1877, a computation was had, upon which it appeared that there was due and unpaid upon said note the sum of $382, which he paid in the belief that it was in fact due; that afterward he discovered that there had been omitted from said computation a payment made March 2, 1875, of $400, and another payment made May 6, 1875, of $500.02. That these payments, by mistake, were omitted from the computation; nor were they indorsed upon the note; nor did the plaintiff in any manner receive credit therefor; that the plaintiff paid these sums again to the defendant. Upon discovery of the mistake he demanded repayment which was refused by the defendant. For these items and the interest thereon the plaintiff demanded judgment. The answer admits the note as described in the complaint, the computation of January 27,1877, the payment by the plaintiff of the amount then found due, and denies that any mistake was made or error committed in the computation, or that the plaintiff has overpaid the note, but does not deny that the items above referred to were omitted from the computation, or aver that they were indorsed upon the note; or that the plaintiff did, in any manner, receive credit for the same; nor does it deny that defendant is indebted to the plaintiff in the sum claimed, or any other sum whatever, upon the matters alleged in the complaint. The case was tried before a referee. On trial, plaintiff moved for judgment on the pleadings, which was denied. The referee, however, found in favor of the plaintiff, on the evidence. The court here held, that any other result than a judgment for plaintiff would have been contrary to the pleadings, and that, therefore, the .ruling of the referee, denying judgment thereon, was most favorable to defendant; but that it.was not necessary to consider that question, as the evidence was sufficient without regard to the admissions in the answer, to war- , rant the findings of the referee John JS. Butler for appellant. J. Me Qui/fe for respondent. [MAJORITY] Daffforth, J., reads for affirmance. All concur. Judgment affirmed.