Contributors to the Pennsylvania Hospital v. Gibson

| Pennsylvania Court of Common Pleas, Philadelphia County | Jul 6, 1839

Ter Curiam.—

As to the first point made by defendant’s counsel, it is to be observed, that in effect, the non-enforcement by the mortgagees of the payment of the principal and interest on several occasions, when the latter became more than thirty days due, and their subsequent receipt of it, constituted a mere indulgence to the mortgagors as to time, and these circumstances do not per se constitute a waiver of the right of the mortgagees to insist on payment on a subsequent default occurring. A mere passive indulgence in a case like this, cannot amount to a waiver, any more than mere delay in suing a principal, unaccompanied by other circumstances, will exonerate a surety. This case is however stronger, because it is between the debtor and creditor, without any of the equities which may exist in the case of a surety. There must be some act on the part of the mortgagees, indicating that they have dealt as to the subject matter on a new basis, otherwise we cannot infer the alleged waiver.

As to the second point, we need not determine whether the alleged new agreement to take part of the principal, is made out in fact or in law, by the averments in the affidavit of defence, whether the mortgagees gave any authority to their officer to make such an agreement, or whether that authority, if given, was by parol or otherwise. We may, for the purpose of the argument submitted, assume the making of the agreement. But what was it ? As alleged, it seems to have been an agreement to receive part of the principal before it was due, without waiving any rights which the mortgageesj had, under the sealed instrument, and what is entirely conclusive, the alleged agreement on the part of the mortgagors, was not carried into effect by them, before the suit was brought.

Rule absolute,