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ing his contract, he suffers the whole debt to become due and payable, according to the terms of the mortgage, no court will interfere to relieve him from the payment thereof according to the conditions of his own agreement.” Steel v. Bradfield, 4 Taunt. 227; James v. Thomas, 5 Barn, & Adol. 40.
The authorities to this point are numerous and unanimous. Ferris v. Ferris, 28 Barb. 31; Valentine v.Van Wagner, 37 Barb. 60; Rubens v. Prindle, 44 Barb. 336; Bennett v. Stevenson, 53 N. Y. 508; Martin v. Melville, 11 N. J. Eq. 222; Wilson v. Bird, 28 N. J. Eq. 352; De Groot v. McCotter, 19 N. J. Eq. 532; Cassidy v. Caton, 47 Iowa, 22; Heath v. Hall, 60 Ill. 344; Terry v. Trustees Eureka College, 70 Ill. 236; Leonard v. Tyler, 60 Cal. 299; Stanclift v. Norton, 11 Kan. 223; Crane v. Ward, Clark, Ch. 393. In the last case named this lan
, guage is used :
“The entire amount cannot be altered by any construction which may be given to the contract. The time of payment is only contingent. The parties to the original contract have unquestionably a right to agree that if the interest upon the money is not paid punctually the principal shall become due; so they might make any other event the criterion of the time when the principal was to be paid."
Nor does it make any difference whether the stipulation is contained in the note or mortgage; for
"It is well settled that where several instruments are executed together as parts of the same transaction, they are all to be considered in determining wliat the agreement was.” Schoonmaker v. Taylor, 14 Wis. 342.
Nor is such an agreement in the nature of a penalty or forfeiture as contended, and against which equity by reason thereof will not enforce its terms. To this objection INGRAHAM, J., in Ferris v. Ferris, supra, has aptly replied:
“It is urged that this is a forfeiture, and that equity will always relieve a party against a forfeiture.”
But it is a mistake to say that there is any forfeiture.
“The plaintiff's claim is for the money secured by the bond and interest. There is nothing more claimed. The debtor owes the amount; he forfeits nothing; he is required to pay nothing but his debt; there is no forfeiture to be relieved. If the bond had been conditioned to pay the money in one year, with an agreement to extend the payment a second year if the interest was paid within thirty days after it became due, no one would for a moment argue that there was any forfeiture; and yet that condition, and the condition of the bond in suit, are substantially the same. Nor can it be called a penalty; that is, a sum named as damages, to be recovered for violating an agreement or promise in lieu of damages. There is no such thing here. No damages are called for. Merely altering the day of payment is neither a forfeiture of any property, nor a penalty in damages for the breach of any agreement.” Id.
It is plain, then, that such contracts are regarded as valid, and will be enforced in equity according to their terms when a default occurs. But there must be a default, which, as Lush, J., says, “imports something wrongful; the omission to do something which, as between the parties, ought to have been done by one of them.” And the omission to pay on the day specified will be such a default as will enforce
a forfeiture of the time of the credit, unless it was occasioned by the acts or declarations of the holder of the mortgage, or the mortgagor can show some good excuse for it,—such as mistake or accident or fraud. He who comes into equity must come with skirts clean and free from blame; for, if the complainant who seeks to enforce the forfeiture of the time of credit is not free from fault, or guilty of conduct calculated to mislead the mortgagor and designed to prevent the payment of the interest on the day specified, the court will refuse to enforce the forfeiture of the time of credit. In Noyes v. Clark, supra, it was held that where a creditor keeps out of the way vent a tender of the amount due him, a suit commenced by such creditor for the recovery of the debt will be stayed, upon payment of the amount due, without cost, although a technical right of action existed at the commencement of the suit. The chancellor says:
“A court of equity, however, will not permit the mortgagee, or his assignee, to take an unconscientious advantage of the mortgagor who is willing to pay at the time prescribed, but who is unable to do so in consequence of the act of the other party; especially where there is reason to believe the default in payment was the result of a mere trick, to defraud the mortgagor of his rights, by depriving him of the power of making the payment at the time prescribed. In this case, it is evident that the defendant, Clark, was both ready and willing to pay the interest on his bond and mortgage on the day it became due; and if the assignee did not intentionally deprive him of the power of doing so, by keeping out of the way and concealing his place of residence, he transacted the business of the assignment in such an unusual manner as to produce the same result."
In De Groot v. McCotter, supra, it was held that the court will not enforce a forfeiture of the credit if the complainant himself is in fault, or has misled the defendant. In this case there was a parol agreement as to the place of payment, and the complainant promised to call at this place, but declined to give the number and street of his residence. Afterwards, upon suit brought by the complainant, the defendant claimed there was no default under the circumstances, as the complainant failed to call at the place appointed, etc. And in the course of opinion DALRIMPLE, J., says:
“I think it, therefore, fair to say that the complainant by his own conduct prevented a strict tender.
He is here asking the enforcement of a forfeiture according to the letter of the bond. We cannot grant this prayer, because it does not appear that he is without fault. It is not necessary to consider whether, as insisted by the defendant, the complainant acted in bad faith, or from a mere mistaken notion of his legal right. In either event, the result was the same,-to mislead the defendant." See, also, Wilson v. Bird, supra
These references are sufficient to show the principle upon which courts of equity will interfere and relieve the defendant from the forfeiture of the time of the credit. Now, passing to the facts, what is the state of the case as disclosed by the evidence? At the time the note and mortgage were executed, both parties resided in this county, and the place of payment was at Salem. Subsequently the com
plainant removed to Portland, and resided there when the installment of interest fell due. The evidence shows that the complainant was extremely anxious to secure the payment of the whole debt, and endeavored to bring about some negotiation to effect that purpose. Now, it is clear to my mind, failing in this as she did, that she was determined to take advantage of any circumstance, and to entrap the defendant in any way she could, so as to claim a default, and enforce the forfeiture of the credit. Several days prior to the date when the interest fell due, the defendant wrote to her, inquiring to whom he should pay the interest at Salem; or, if she would prefer it, that he would send her a check for the amount. In doing this, he was simply seeking honestly to keep the performance of his contract, and at the same time, if she preferred it, to save her the trouble and expense of coming to Salem. It was an easy matter for her to have answered his letter, either stating she would be there, and where, or. designating some person or bank to receive it, or authorizing him to send his check, as might be her pleasure. Honesty and fair dealing required that letter to be answered, but she did not do it, but purposely and advisedly refrained from answering, to produce the result which followed. She neither came to Salem, nor designated any person or bank to receive it for her. More, she did not intend to do
. either. It would not do for the defendant to incur the risk of going to Portland, for that was not the place of payment; and to do that from his place of residence in the county, by the most rapid means of locomotion, he could not return before late in the evening, when, practically, he would have been in default. The defendant did the only thing he safely could do,—came to the place appointed by the contract for the payment of the interest. It is not questioned but what he had the money, or that his credit at the bank was not such that the payment could have been effected at any moment; nor that he was not at the proper place, ready and willing to meet his engagement. But the complainant was not there, either in person or by proxy, and designedly so. The object manifestly was to lead him to suppose that the complainant would be there when the purpose was to remain away, and thus keep him in waiting until the hour for the late train should have passed, when practically he would be in default, or the hour would be too late to arrange for a deposit of the money. There was in this conduct, and in that which preceded it, viewed in the light of all the circumstances, a manifest intention to mislead him. To my mind there is no difference in such cases from the cases already referred to, where the party kept out of the way, or concealed the place of his residence, to deprive the mortgagor of the power of making the payment at the time prescribed. He was not shirking his obligation, but honestly trying to perform it, and only prevented from doing it by artifice. In such case there was not a default in the sense of a wrongful omission to do what had been contracted to be done, for the result produced originated in the miscon
duct of the complainant, and for the consequences of which the defendant ought not to be made to suffer. This was not a contract which by its terms made the failure to pay the interest at the day specified work a forfeiture of the credit as to the whole debt absolutely, as in many of the cases, but only at the option of the complainant,—à circumstance which is to be considered in connection with the case in the light of all the evidence, and the conduct of the defendant immediately afterwards in sending checks for the interest.
WALDO, C. J., (dissenting.) This may be stated to be a contract, substantially, to pay money at a day certain, with a condition to pay at an earlier day if the debtor shall fail to do a certain act. The plaintiff alleges the happening of the contingency on which the money was to be paid at the earlier day, and claims the payment provided for in that case by the contract. The case turns on the happening or not happening of the contingency,—or, is the debt in default? If so, the case is at an end.
The parties have expressly agreed that on a certain contingency payment shall be made at the earlier day. The contingency relates only to the day of payment. In either case, there is a debt to pay, and the payment is the payment of a debt and not of a penalty. Thus, in Stern v. Beck, 1 DeG. J. & S. 595; S. C. 11 Wkly. Rep. 591, where a mortgage provided for the payment of sums by installments, and contained a stipulation for the payment of the whole sum in default of payment of any such installment, it was held by the lord justices, reversing the judgment of St. John STUART, V. C., that such. provision was binding, and was not in the nature of a penalty. Peachy v. Somerset, 2 White & T. Lead. Cas. *1082; Crane v. Ward, Clarke, Ch. 393; People v. Superior Court, 19 Wend. 104; COULTER, J., Mayo v. Judah, 5 Munf. 500; Basse v. Gallegger, 7 Wis. 442. There is no room in such a case for a court of equity to put an equitable construction upon the contract, and thereby make it other than what the parties themselves have expressly made it. BRAMWELL, B., in Preston v. Dania, L. R. 8 Exch. 20, is of opinion that equitable interference with the agreements of parties has already been carried beyond sound principle.
Now, the plaintiff was, on the day of payment, and long prior thereto, a resident of Portland, and this fact was known to the defendant. Therefore, either of two courses was open to him to avoid a default: (1) To be ready with the money at Salem to pay at the day; or (2) to tender payment at the day to the plaintiff in Portland. He did neither. There seems to have been nothing to prevent him doing the one or the other. A default is the inevitable result. A few days before the money was to fall due the defendant wrote a letter to the plaintiff at Portland inquiring where he should make payment. There is no evidence that the letter was received, but, on the contrary, there is evidence that it was not; for the defendant testifies that the letter was returned to him through the post-office, as he supposed, by the postmaster at Portland, in pursuance of a direction on the envelope in case of non-delivery. If it had been received and remained unanswered, it would have amounted to nothing, for the law gave the defendant directions what to do. The plaintiff was under no legal obligation to be at Salem to receive the money. If the defendant had been there with the money ready to pay, it would have been equivalent to a tender, and prevented a default. But he was not there, and as to other steps open to him, the case stands as if there had been no place of payment named in the note. It was defendant's duty in that case to seek the plaintiff at Portland, and to tender her the money. Thus, in Cheney's Case, 3 Leon. 260, the law is stated to be that if "A. is bound to deliver ten bushels of wheat, and no place is limited where the payment shall be made, the obligor is not bound to seek the other party wheresoever, as in the case of payment of money; for the importableness of it shall excuse him.” In Cranley v. Hillary, 2 Maule & S. 122, DAMPIER, J., said: “It is laid down by Littleton that the obligor of a bond conditioned for the payment of money at a particular day is bound to seek the obligor, if he be in England, and at the set day to tender him the money, otherwise he shall forfeit the bond.” And see Smith v. Smith, 2 Hill, 351. “He that pleads an excuse must show that he did all that he could possibly.” Turnor v. Goodwin, Fortes. 150. The defendant did nothing but write the letter above mentioned. The plaintiff did nothing; she remained silent, as she had a strict right to do. It is equally certain that the plaintiff was not ready at Salem with his money to pay at the day. Such readiness is considered equivalent to a tender of the sum payable. Hills v. Place, 48 N. Y. 520. He should have had his money at Salem ready to pay at the day if demanded. Fenton v. Goundry, 13 East, 459; Caldwell v. Cassidy, 8 Cow. 271; Salt Springs Nat. Bank of Syracuse v. Burton, 58 N. Y. 430. As to cases where a note is payable at a city at large, see Boot v. Franklin, 3 Johns. 208; Covington v. Comstock, 14 Pet. 43. A tender after the day is insufficient. Hume v. Peploe, 8 East, 168; 2 Pars. Cont. 770, note. In a social point of view, the conduct of the plaintiff may not have been commendable, but with that we have nothing to do. “As to the mischief which may ensue by this, it matters not; for it might have been prevented by providence of the parties, and the inconvenience which may happen to them must not alter the law.” Dekins v. Latham, Sty. 317. Lord MANSFIELD said, in Pray v. Edie, 1 Term R. 314, speaking of a very incommendable defense: “This is a matter for his consideration, and not for mine."