85 Ky. 25 | Ky. Ct. App. | 1887
delivered the opinion op the court.
The appellant, on the 28th day of March, 1883, executed and delivered to the appellee his written obliga
Signed, &c.
The appellee, in his petition on said note, after setting it out, alleged that the appellant “wholly failed and refused to pay the installment on said debt which was due on the 28th of April, 1883, when it became due, and said note was, by the terms of said writing, then due. And said defendant has not paid any part of said debt, except ten dollars, on the — day of-, 1883, and eighteen dollars on the 17th of May, 1883, though it is all due.” The appellant, in his answer, alleged “that on the — day of May, 1883, and before the institution of this suit, he paid to the plaintiff eighteen dollars in part payment of the debt sued on, and said plaintiff accepted said money in payment of one twelfth part of said debt, and the interest due thereon for one month, and waived the breach of contract complained of in his suit.”
The allegations of the appellee’s petition that the writing sued on was given in consideration of money loaned appellant by appellee, and that the whole amount of said money was to become due on the 28th of April, 1883, if appellant failed to pay one twelfth
His allegation is, “that on the — day of May, 1883, he paid to the plaintiff eighteen dollars in part payment of the debt sued on.” The whole debt was sued on as due, and the appellant, by the language quoted, admits that he paid eighteen dollars in part payment on the whole debt.
The note, or obligation was credited with ten and eighteen dollars, as part payments on the whole debt. The appellant failed to deny, and thereby admitted, that the credit thus entered was correct. Appellant then alleged that plaintiff accepted said money in payment of one twelfth part of said debt, and the interest due thereon, for one month;” but he had already said that he paid it on the whole debt, and admits that appellee’s entry of it as a credit on the whole debt was correct. The allegations stand thus: That appellant paid eighteen dollars on the whole debt, and that appellee credited the whole debt with the eighteen dollars, but accepted it in payment of one twelfth part of the debt. So the failure of the appellant to allege that he paid the appellee the eighteen dollars, in discharge of the first installment due on the contract, and that "it was ac
The appellant was a man of very limited means. The appellee loaned him two hundred dollars without security. The loan was evidently made to relieve the appellant of some pressing necessity; and as a means of assuring the payment of said money, they agreed that appellant should pay one twelfth part of the sum at the end of each month, together with interest thereon, until the whole debt was paid; and if he made default in any of the monthly payments, then the whole debt was to be due. So, we see, that time was of the essence of the contract. The appellee’s security depended upon the punctilious discharge of the contract by appellant according to its terms. It is unlike an executory contract where both parties agree to do something in the future ;, both the'consideration and the performance are before them. In such a case the performance may be waived without any new consideration for it, because no property or other thing of value having passed from one to the other, the parties will be left in statu quo. It is unlike a forfeiture contained in a lease for the non-payment of rent; there, if the landlord receives the rent accruing after forfeiture, he thereby waives the forfeiture, because his condition is not worsted; he is still the owner of the land, and has received the stipulated price
Here the appellee had loaned his money to the appellant. The loss, by the failure of the appellant to pay, would fall alone upon the appellee. His security for the payment of the money consisted in the prompt payment of the monthly installments. Therefore, time was of the essence of the contract. The prompt payment of the monthly installments was the substantial consideration for making the loan, and a failure to make these payments promptly was a substanstantial violation of the contract; and the loss resulting
The appellant’s answer being fatally defective, the judgment of the lower court is affirmed.