
    George Rice vs. Joseph Clark.
    Anote and a mortgage were given to secure payment for goods that should afterwards be sold by the mortgagee to the mortgagor: After several sales of goods, the mortgagor gave two notes to the mortgagee on interest, for the amount unpaid and due tc him for the goods, without including interest before the date of the notes, and the mortgagee gave him a paper, promising to give up the mortgage as soon as paymen> of the two notes, with interest, should be made. Held, in a writ of entry by the mortgageeto foreclose the mortgage, that he was entitled to a conditional judgment fo* the amount only of the two notes and interest thereon 3 that the paper given by him to the mortgagor was an account stated, in which he had waived his claim, if he eve: had a just one, to interest on the goods before the date of the notes.
    Writ op entry to foreclose a mortgage, dated December 7th 1838, to secure a note of the same date, given by the tenant to the demandant, for $1000 and interest, payable in three years. The case came before this court on the .following bill of exceptions, allowed by a judge of the court of common pleas :
    “ The tenant was defaulted. The demandant moved for a conditional judgment; and the only question between the parties was as to the amount of that judgment.
    “ It was admitted by the demandant, that the note and mortgage were given to him by the tenant as security for the payment for such goods as the demandant might sell to the tenant, after the date thereof; and it was also admitted that after said date, and before September 9th 1840, the demandant sold to the tenant divers lots of goods. On the day last named, the tenant executed a deed to the demandant of a portion of the mortgaged premises, with the usual covenants of warranty, &c. except that the covenant against incumbrances was followed by the words ‘ except a mortgage to said Rice; ’ and on the same day the demandant signed and delivered to the tenant a paper of which the following is a copy: ‘ Boston, September 9th 1840. I hereby agree to give up a mortgage deed now held by me for $1000, without interest from date, as soon as payment is made of two notes, amounting to four hundred and eight dollars, with interest. Geo. Rice.’ It was admitted that the mortgage deed referred to in said paper is the one upon which this suit is brought, and that the demandant then held, and now holds, two notes against the tenant, amounting together to the sum of $408, bearing interest; and that this sum was the amount due to the demandant for goods sold to the tenant before the date of said paper, not reckoning interest upon the items of the account.
    
      “ The demandant offered to show that the price of the goods delivered to the tenant by him bi-fore the date of said paper, with interest, amounted to more than the sum specified, and contended that he was entitled to a conditional judgment for such larger sum. But the presiding judge directed the conditional judgment to be entered for the amount of the two notes in said paper mentioned, with interest. To this ruling the demandant excepted.”
    
      Hazen, for the demandant.
    
      G. Minot, for the tenant.
   Shaw, C. J.

The court are of opinion that the direction was right. The transaction of September 9th 1840, as shown by the paper given by the demandant to the tenant, was an accbunt stated of the amount due on the mortgage, conclusive upon the demandant. If he ever had any just claim for interest on the account for goods sold, he waived it by this statement.

Exceptions overruled  