On August 27, 1945, the plaintiff loaned to defendants Vern O. Peters and Leon Peters, $2,000, to supply the full purchase price of a farm then bought by them. Plaintiff was given a note in that sum secured by a mortgage covering the farm. In February, 1946, the owners sold the standing timber on the farm for $1,500. $1,000 of the purchase price of the timber was paid by defendant, Leon, to plaintiff, who released the timber from the security of the mortgage. The release recites, among other things, that the mortgage debt "has been partly paid."
On November 15, 1947, to secure an additional loan made by plaintiff to enable him to buy cattle and machinery Leon executed a note and chattel mortgage in the sum of $3,271.60 to plaintiff.
On May 6, 1949, Vern and his wife conveyed their one-half interest in the farm to his mother, Mabelle Clair Peters, and on December 31, 1949, Leon and his wife conveyed their one-half interest in the farm to the mother. Leon sold the farm personal property at auction and from the sale realized all but $240 of the amount of the chattel mortgage which he turned over to plaintiff.
On October 16, 1950, the owners being in default in the payment of taxes and interest, the plaintiff declared the whole amount of the mortgage indebtedness due and commenced this action of foreclosure. He demanded sale of the premises for payment of $2,000 principal. None of defendants appeared except the mother who answered demanding that credit for the $1,000 paid when the timber was sold should be applied to the mortgage indebtedness. Plaintiff claimed that it was not intended that the payment should be there applied but that it was intended to apply and was applied toward another indebtedness owing by Leon.
The trial court found that the indebtedness represented by the note and real-estate mortgage was the only debt owing by any of the defendants to plaintiff at the time the timber was sold; that the payment of $1,000 made at that time was applied to the real-estate-mortgage indebtedness; that in December, 1949, the mother had further reduced its amount by payment of $100 and that there was then due upon the note and mortgage the sum of $917.10. Judgment of foreclosure was entered August 14, 1951. Plaintiff appeals.
GEHL, J.
Plaintiff attacks the finding that there was only one indebtedness at the time the $1,000 was paid. He contends that Leon Peters then owed him on other accounts and that the payment was made to apply and was applied against the other indebtedness. An issue of fact was presented.
We are satisfied from the record that if there was any other indebtedness it could have arisen only on account of a tractor which the plaintiff claims he had sold Leon before the sale of the timber. There is some suggestion that plaintiff may have loaned Leon $300 or $400 but the testimony as to that was not of such character as to sustain a finding to that effect. It appears to be a fact that plaintiff's tractor was delivered to the farm but there is a sharp dispute as to the time of delivery and the nature of the transaction under which it was delivered. Plaintiff's witnesses testified that it had been delivered before payment of the $1,000 and plaintiff himself testified that it was sold to the brothers.
Plaintiff's bookkeeper's testimony that the tractor was delivered before February, 1946, but that there was no entry made on plaintiff's books indicating a sale, is significant. It is undisputed that the tractor was returned to plaintiff, which fact supports the inference that it had been loaned to Leon. The testimony of defendants' witnesses is to the effect that the tractor was not sold to either of the brothers but was loaned to them and that the tractor had not been delivered to the farm prior to the time of payment of the $1,000.
The trial judge properly attached some significance to the recital in the release to which we have referred. He said:
"The usual business procedure would be to require the payment of a part of the proceeds from the timber sale on the mortgage debt, since the security was substantially reduced. This was evidently the intention of the plaintiff at the time the release was given, for the release contains the words `has been partly paid.' This is supported by the fact that Leon Peters paid the plaintiff $1,000 about sixty days after the release was executed."
Plaintiff urges that the fact that the mother made two interest payments on the basis of a $2,000 mortgage indebtedness after she acquired title to the farm was apparently overlooked. She explains that she paid without having computed the amount due. It is a circumstance which, if it stood alone, might suggest a contrary finding but we may not disturb a finding solely upon the ground that one significant circumstance tends to contradict the court's determination.
We cannot find that the preponderance of the evidence is contrary to the court's finding that there was only one indebtedness owing plaintiff in February, 1946, and that the $1,000 payment made at that time was applied to the mortgage indebtedness; we may not disturb it. In re Village of Chenequa, 197 Wis. 163, 221 N.W. 856.
By the Court. — Judgment affirmed.