HENRY S. HOWARD, Appellant, v. J. B. LOW, Respondent, 1 Cal. Unrep. 82

BALDWIN, J. — Suit was brought on a note for three hundred dollars,' given for a tract of land, and judgment prayed for the note, as also for a sale of the land by virtue of the vendor’s lien to pay the note. A jury was waived and the case tried by the court; but whether waived or not, as this seems to have been an equity case, no jury was necessary. The defendant set up an offset for seven hundred and fifty dollars, on open account for pasturing cattle, and prayed for a counter-judgment for the excess after satisfying the note.

The court found the account due in part, and gave judgment accordingly for the plaintiff for the amount of the note, less one hundred and twenty dollars allowed as an offset. The plaintiff appeals from this judgment. We see no just ground of appeal. The evidence seems to support the finding. There appears in the statement proof of this contract and of the value of the pasturage and number of cattle pastured. The fact that some of the cattle belonged to another person than plaintiff or jointly to plaintiff and another is no objection to the offset against the plaintiff, who made the contract to pasture them.

We see no reason for appealing this case, but as the plaintiff has only stayed his own judgment drawing ten per cent interest per annum, we do not think it necessary to give any damages. Judgment affirmed. I concur: Cope, J.