Bledsoe

This action was brought to recover an alleged balance of $313.30 on a promissory note for $2,675, and to foreclose a chattel mortgage securing the same. Defendant by his answer pleaded payment of the note in full, and by cross-complaint seeks to recover from plaintiff "the sum of $546, which defendant claims to have paid by mistake, in excess • of his indebtedness on the transaction. The judgment was that plaintiff take nothing by his action, and that the defendant recover the amount of overpayment alleged in his cross-complaint.

The main contention on the appeal is as to the application of two payments, aggregating $700, made by defendant to the plaintiff prior to the execution of the note sued on.

The transaction out of which the entire controversy grows was substantially as follows: In May, 1911, an agreement was entered into between the parties whereby the plaintiff sold to the defendant a lot of cattle and all of plaintiff’s interest under a certificate of purchase from the state of California in 280 acres of land in Kern County. The price to be paid for the land was $400, as a fixed sum, with a further payment of $600 if plaintiff’s interest in a portion of the tract…