279 Pa. 449 | Pa. | 1924
Opinion by
This is an action of sci. fa. sur mortgage to collect principal, by reason of an alleged default in payment of interest; the court below refused judgment for want of a sufficient affidavit of defense, and plaintiff has appealed.
Emma Jacobs holds the mortgage in suit, for $20,000, reduced to $10,000, created by Thomas Gauntlett, on certain properties in the City of Philadelphia, payable September 15, 1924, in “lawful money of the United States,” with interest at six per cent per annum due half-yearly, it being provided that if at any time a default occurs in the payment of interest for the space of thirty days after any semi-annual installment shall fall due, then the whole principal debt becomes payable immediately. After creation of the mortgage, Louis H. Petzoldt, defendant, acquired the encumbered premises;
The alleged default period of thirty days, relied on by plaintiff, expired Saturday, April 14, 1923, and the affidavit of defense sets forth that on April 13, 1923, defendant mailed his cheek for $300, the amount due, to A. B. Jacobs, the husband of Emma Jacobs, mortgagee, addressed to A. B. Jacobs at the Jacobs home in Atlantic City, N. J., where plaintiff and- her husband were then residing; that defendant believed and expected to prove the check was received by A. B. Jacobs on April 14, 1923, the last day of' grace; further, that, though Emma Jacobs was the recorded legal owner of the mortgage in suit, her husband had on several occasions assured defendant the mortgage really belonged to him, A. B. Jacobs; that the latter was “the person with whom deponent had all of his dealings” with reference to the mortgaged property and therein Jacobs had “acted for and on behalf of his wife in all matters pertaining to said mortgage prior to this suit.” Following this averment of agency, the affidavit states that defendant’s check was returned to him by mail on April 17, 1923, accompanied by a letter from plaintiff’s attorney as follows : “I am returning the enclosed check made payable to A. B. Jacobs. Not only was the check made payable to the wrong person, but' arrived after the thirty-day default period had expired. The entire principal of the mortgage became due and payable and I am beginning foreclosure proceedings to-day to collect, together with interest due.” Immediately after receipt of this letter, defendant made a cash tender of the amount due, which was refused, suit having been commenced in the meantime.
It will be observed no complaint is made in the above letter that the amount due was not tendered in “lawful money of the United States,” as stipulated in the written agreement. Mr. Justice Gibson well said, in Decamp v.
The order appealed from is affirmed.