92 So. 902 | Ala. | 1922
"Where a purchaser is let into possession under the terms of the contract, which provides for future payments, and which does not expressly provide for interest on the deferred payments, he is not chargeable with interest on such deferred payments until their maturity." 39 Cyc. 1572, iv, and authorities cited.
Under the contract of purchase and sale shown to have been made between complainants and respondent Lizzie Blackwell, there is nothing to support any implication that interest attached to the deferred payments prior to the dates of their maturity, and under the rule above stated we are constrained to hold that the trial court erred in charging complainants with interest from the date of the contract.
The evidence shows that complainants borrowed and have kept on deposit in a local bank sufficient money to meet the first deferred payment of $500, which fell due in the fall of 1919, and while ordinarily, in order to stop the running of interest, a tender of the amount due must be made to the creditor, after which the amount so tendered must be kept in readiness to be paid to him on demand, yet, in a case like this, where, as the evidence shows, the creditor has willfully prevented an actual tender by the concealment of her whereabouts, the failure to make the tender is excused, and it is sufficient to set aside the money and keep it ready for tender or payment, as occasion may permit.
We therefore hold that respondent, or her assignee, is not entitled to claim interest on the first installment of $500. The second installment, however, bears interest from the date of its maturity, "the fall of 1920," which we construe, contra proferentem, as meaning the first day of the fall season, or September 1, 1920. The amount of this installment, including principal and interest to date, is $563.25.
It appears, also, that complainants kept and still keep ready for payment the sum of $250, which was to be paid on delivery of the deed to them, and the actual tender of which was prevented by the absence and concealment of the vendor. That part of the purchase price, therefore, bears no interest. It appears, then, that complainants must pay $250 plus $500 plus $563.25, or a total of $1,313.25, less the amount paid by them for back taxes, $15.46, leaving a net balance of $1,297.79.
The decree of the trial court will be modified and corrected, as indicated, and the time for the payment of this amount by complainants will be extended to 60 days from this date. As thus modified and corrected, the decree of the trial court will be affirmed, at the cost of appellees.
Modified, corrected, and affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.