Neylan

This was an action to foreclose a mortgage given to the firm of Neylan & Young by the defendant Abram F. Green to secure the payment of a promissory note for the sum of nine hundred dollars. The answer, among other things,'puts in issue the- allegation of non-payment of the note. The court found that it had been paid, and rendered judgment for the defendants. The plaintiff appeals from an order denying his motion for a new trial.

*129 The general features of the case are as follows: The defendant Abram F. Green was a settler on the public lands, and was in the habit of taking lumber, bark, “shakes,” etc., from the tract, and selling it to the firm Dingwall & Waldo, in Santa Cruz, and getting supplies, etc., in return. Dingwall & Waldo were in the habit of shipping the stuff which they received from Green and from other parties to the firm of Neylan & Young of San Francisco, who sold it on commission, and placed the proceeds to the account of Dingwall & Waldo, who drew against it as occasion required, and frequently their account was overdrawn. While their account was so overdrawn, the defendant Abram F. Green applied to them for $133.12, which he needed to make the last payment…