McGee v. Wineholt

Citations

• 23 Wash. 748
• 63 P. 571
• 1901 Wash. LEXIS 478

Syllabus

<p>BES JUDICATA — DECREE OF FORECLOSURE-CONCLUSIVENESS AS AGAINST BREACH OF CONTRACT FOR MORTGAGE.</p> <p>A decree of foreclosure is not res judicata of an issue of breach of contract on the part of the mortgagee in failing to loan the full amount stipulated for hy the mortgagor, though such issue may have been tendered in the foreclosure suit and its acceptance refused hy the mortgagor, since the mortgagor’s right to damages is not material to the mortgagee’s right of foreclosure.</p> <p>BREACH OF CONTRACT — DAMAGES.</p> <p>In an action for damages for breach of contract on the part of a mortgagee in retaining a portion of the loan agreed upon, whereby the mortgagor was unable to pay a loan theretofore made upon the property, the only damages recoverable are the excess in interest charges the mortgagor was compelled to pay between the time of execution of his note to the mortgagee and its maturity. ■</p> <p>REQUESTED INSTRUCTIONS-PERTINENCY.</p> <p>It is error to refuse a requested instruction, when it is fairly within the issues, and there is evidence tending to prove the contention of the party requesting the instruction.</p>