Fratessa

The action was brought by the assignee to foreclose a mortgage on land located in Sacramento County. The written obligation to secure which the mortgage was given was as follows: "$1500.00 Oakland, Calif. Oct 26th, 1907. "On or before two years after date I promise to pay Geo. L. Woodford, or order, the sum of Fifteen Hundred Dollars, Gold Coin of the United States, with interest at the rate of one per cent per month from and after maturity, value received. If the principal and interest, or either shall not be paid when due then the whole of the said indebtedness shall be due and collectible at the option of the holder hereof. This note is upon the following conditions as to its payment prior to its maturity, or at maturity, that inasmuch as George L. Woodford has received from the maker hereof Two thousand shares of the capital stock of the Roffy Electrical Company upon which the maker hereof has and does guaranty a dividend each year for two years from January first 1908 of 750.00 dollars. If therefore in the said two years dividends have been received by Woodford on the said shares to the full sum of 1500.00 dollars then this note to be canceled. If the said dividends during…

In their petition for modification of the opinion and judgment respondents claim that we should disregard the contention of appellant that it was necessary for the defendants to plead "that the land had been exonerated from liability, and, also for the court to find that said release was not agreed to by respondents." This claim is based upon the proposition that appellant makes the contention for the first time in his closing brief. However, the contention of appellant is in response to the claim of respondents in their brief that "the mortgage was satisfied as to the contesting defendants because plaintiff released land of greater value than amount of mortgage." The rule invoked by respondents is, therefore, hardly applicable to the case. It is true that some evidence was received on the subject without objection, and it appears that the cause was tried upon the theory that such an issue was *Page 189 made. This would preclude appellant from thereafter making the objection that the matter was not pleaded. However, there is no finding upon the subject, and under the view we take of the case, the findings that are made are insufficient to support the judgment. It is claimed by…