Burke

This is an action to recover from defendant $679.78, alleged to have been paid to him by plaintiff, under duress of the property of said plaintiff.

■ Plaintiff had a verdict for $652.48, upon which judgment was entered. The appeal is by defendant from the judgment and from an order denying his motion for a new trial.

On the twenty-first day of February, 1890, plaintiff *279 executed to defendant and Mary M. Barnes a mortgage upon certain real property situate in the county of Santa Barbara, to secure the payment of two certain promissory notes aggregating $17,000, payable one year after date, with interest at 10£ per cent per annum, interest payable semi-annually, and if not so paid to be added to principal and draw like interest.

No interest was paid upon the notes, and at their maturity plaintiff was unable to pay, and defendant was about to foreclose, when, by an agreement, plaintiff, on the ninth day of March, 1891, conveyed all the mortgaged property to defendant, whereupon the latter executed an agreement to one B. J. Broughton, a friend of the plaintiff, whereby he agreed and hound himself upon the payment to him of $20,500 on or before September 1, 1891, to convey to…