262 Pa. 28 | Pa. | 1918
Opinion by
Plaintiff sued upon two promissory notes for $5,000 and $4,500 respectively, given by the defendant to it. As collateral thereto plaintiff held certain stocks, and in addition two mortgages aggregating $17,000 secured upon a property in tíre Borough and County of Queens, New York. The mortgages were about four years overdue when assigned, and the property covered thereby was subject to two other mortgages upon which $20,750 was due, exclusive of interest, and to sewer and tax assessments aggregating nearly as much more; all of which were liens prior to the two collateral mortgages. Pending the trial the stocks were sold at a price satisfactory to defendant, leaving an admitted balance due plaintiff of $6,763.91, with interest from February 6,
Some very interesting questions are suggested by this record, questions regarding which this court has not always been wholly in accord with the courts of our sister states, or even with itself; but as the issue here may be determined without reference to- those questions, we prefer not to- answer them until it is necessary so- to- do, after careful arguments thereof due to- such necessity.
We have held, and in so- doing have gone as far as any court of which we have knowledge, that, in the absence
Be it so that plaintiff herein was bound to act in good faith and without supine negligence, it is none the less true that a refusal to act according to defendant’s judgment or fears is not negligence of any kind. If bound to act whenever defendant required it, its bargain for a particular security might, without its consent, be broken as soon as made; its judgment would go for naught, and it might lose some or all of its claim, but could never receive more than its debt. Such a contention is too' one-sided to receive judicial sanction unless unavoidable. To allow one of the parties to the contract to thus change it without the consent of the other, either express or implied, would come perilously near violating the obligation of the contract, if it did not overstep the constitutional line of inhibition.
If, Apon the facts appearing in this record, the defendant desired the collateral mortgages' to be foreclosed, it was his right to pay his indebtedness and take an assignment of the mortgages; or to make some other satisfactory arrangement with plaintiff whereby his desires could be accomplished. He had no other right.
The conclusion thus reached obviates the necessity for considering the other questions raised.
The judgment is reversed and is here entered for the plaintiff for $6,763.91 with interest from February 6, 1918, this judgment to be entered also on the records of the court below and all future proceedings thereon had in said court.