THOMAS SHARP, Respondent, v. MICHAEL GRIFFIN, Appellant, 1 Cal. Unrep. 886

By the COURT. — There is a substantial conflict in the evidence as to the fact whether- the bill of sale was intended as a mortgage. The court below finds that it was so intended, and we cannot disturb the finding. Assuming it to have been a mortgage, the provision by which the defendant “agrees to pay as fast as it comes out of the claim, after deducting three dollars a day for living, for each day’s work,” is not to be construed as an agreement that the debt to the plaintiff shall be paid only out of the proceeds as they come out of the claim after deducting the three dollars per day.

The defendant (Griffin) was not liable for the plaintiff’s debt, and did not agree to pay it, except conditionally in the manner stated. He undertook, it is true, to apply the proceeds, after deducting the per diem to the plaintiff’s debt; but the debt was due when the instrument was executed, and there was no stipulation to extend the credit. There is no error in the record. Judgment affirmed.