
    Warren M. Benton v. James Roberts.
    Damages will not be allowed for a frivolous appeal, unless prayed for by the ap-pellee.
    Appeal from the District Court of Carroll, Willson, J.
    
      Stacy, for the plaintiff.
    
      Selby, Bemiss and Willson, for the appellant.
   Simon, J.

The defendant is appellant from a judgment which condemns him to pay to the plaintiff the sum of $1770 14, which is the amount claimed, (except $20,) in said plaintiff’s petition, as due him upon four drafts drawn upon him by said defendant at divers times and dates, and on a note which the plaintiff drew for the benefit of said defendant, in favor of, ancl made payable to, Abner C. Roberts ; the whole amount of which, it is pretended, was to be credited upon a note of $5000 due by the plaintiff’ to the defendant, and upon which judgment has been obtained and execution issued, without allowing said plaintiff any credit for the sums which he had paid, or assumed to pay, for the said defendant.

• . The signatures of the defendant on the drafts sued on have been satisfactorily proven, as also the fact of the plaintiff having assumed to pay for the defendant, to Abner C. Roberts, a sum of $700, for which Benton gave his own note. One of the witnesses states, that it was agreed between defendant, the plaintiff, and Abner C. Roberts, that Benton should pay to the latter for James Roberts $700 or $800, and that Benton gave Abner C. Roberts his note for $700 in full of what James owed to Abner, and that this note was to be credited on Benton’s note to James. The note, on which the credit was to be given, was for $5000.

It is also admitted, that the amounts claimed by the plaintiff in this suit as due to him, have not been credited on the $5000 note due by Benton-to James Roberts; that there has been judgment on the said note against Benton, and property sold; and that there has been a twelve-months’ bond given in the case.

This case presents a mere question of fact, which seems to have been well investigated below. We have carefully examined the evidence adduced on the trial, and, without its being necessary to give any further detail of it, we are satisfied that the plaintiff has shown himself entitled to recover the amount sued for. He owed a note for $5000 to the defendant, who was to credit him on the same for the different sums paid, or assumed to be paid; this the defendant did not do, but obtained judgment against him for the whole amount of the note; and it appears to us just that those credits, which are now the subject of a separate action, should be the basis of a separate judgment in favor of Benton against the appellant. The proof is so positive as to the fact of its having been understood between the parties that the drafts and the note of $700 were to be credited on the $5000 note, that we are really at a loss to discover what relief the appellant expected to obtain at our hands, and had the appellee claimed damages against his adversary, as for a frivolous appeal, we should have felt ourselves bound to allow them to the whole extent of the law.

Judgment affirmed.  