Crumbly v. Bardon

70 Wis. 385 | Wis. | 1888

OjbtoN, J.

This is an action to recovpr the penalty provided by sec. 2256, E. S., as amended by cb. 100, Laws of 1883, for the refusal or neglect to discharge a mortgage. This statute so providing a penalty should receive a strict construction. Stone v. Lannon, 6 Wis. 497. The complaint shows that there had not been a “full performance of the conditions of the mortgage,” and this is a condition precedent to the right to recover the penalty. The plaintiff only made a tender of the mortgage money, which the defendant refused to accept, and also a satisfaction piece in due form, which he refused to execute. This is not “ s.full performance of the conditions of the mortgage.” It is only an offer to perform, or tender of performance. The statute is, “ after a full performance of the conditions of the mortgage,” and “ after being thereunto requested,” and “a satisfaction piece in due form being to him tendered for execution, and after tender of legal charges,” then, after seven days, if the mortgagee refuses or neglects to discharge the mortgage, or to -execute and acknowledge a certificate of discharge or release thereof, he is liable to the mortgagor, his heirs or assigns, in the sum of $100 damages, etc. The statute provides for a tender of the satisfaction piece, and a tender of legal charges; but'it does not provide for a tender of the mortgage money, or a tender of performance of the conditions of the mortgage, or an offer to perform. In an action, if there had been full performance of the contract, the plea would be performance; and if only a tender had been made, a tender would be pleaded. They are not the same in law or fact. So, if the performance consisted in payment, the plea would be payment; but if only a tender of the money had been made, the plea would be a tender. The conditions must be actually performed or the payment actually made, to answer the demands of the statute. To make the statute mean actual, fall performance, does not require a very strict construction even. It is the natural and usual meaning of the language itself. The plaintiff, by his tender, may have laid the foundation for a suit in equity for redemption or satisfaction of the mortgage, but not for the penalty provided by the statute.

The demurrer to the complaint was overruled. To sustain this ruling the learned counsel of the respondent further insists that the last clause of the complaint states a separate and independent cause of action. That clause is: “Plaintiff further alleges that the defendant is indebted to the plaintiff in the sum of one hundred dollars, according to the provisions of section 2256 of chapter 100 of the Revised Statutes of Wisconsin, as amended by chapter 100 of the Laws of Wisconsin passed in 1883.” This appears to be the closing allegation of the complaint, which simpl}r makes the previous statement of facts have reference to the statute upon which the plaintiff’s cause of action is based. To omit this clause would leave the complaint as one simply asking or demanding $100 unliquidated damages, without any reference to the penalty, or the statute which provides it, in case of refusal or neglect to discharge the mortgage upon the facts previously stated. This clause is not pleaded as a separate cause of action. It is simply a further allegation. The facts stated in the complaint, and upon which the plaintiff relies to recover the penalty fixed by the statute, must be taken as true on the demurrer, and they show that the plaintiff has no cause of action.

By the Court. — The order of the circuit court is reversed, and the cause remanded with directions to sustain the demurrer and for further proceedings according to law.