114 Ga. 393 | Ga. | 1901
Mrs. McNealy filed against Rufus Jones an equitable petition which was, in brief, substantially as follows: On the 12th of June, 1894, she was indebted to the firm of Jones Brothers & Butt in the sum of $1,695, evidenced by 170 promissory notes, all for $10 each except one which was for $5. These notes became due one each month for a period of 170 months, beginning with October 1, 1894. Each note bore interest from its maturity at 8 per cent, per annum, and the payment of all was secured by a mortgage on a lot in Phoanix City, Ala. By way of additional security, plaintiff procured insurance upon a house situated on said lot, “ loss, if any, payable to mortgagees and payees of said notes.” Said firm was dissolved and Rufus Jones became the owner and holder of said notes and mortgage. . Plaintiff promptly paid each note as it matured til.1 October 1st, 1899, the payments aggregating $600. The house was consumed by fire, September 28, 1899. On that date the policy was so written as “to protect the said Rufus Jones as his interest should appear.” The insurance company remitted its check' for $1,056, payable to plaintiff and said Jones. She indorsed the check and turned it over to him, “he agreeing to settle with petitioner.” He collected the amount named in the check and paid over to petitioner $108.58, but refused to account and settle further with her. The said Jones now holds the remaining notes, aggregating $1,090. The average time
There was no demurrer to this petition. The defendant filed an answer in which he asserted “that while he is not, either in law or equity, bound to accept payment of the said indebtedness before it matures and rebate the interest thereon agreed to be paid in the original contract, still he is perfectly willing to do so” upon a fair and equitable basis, but not upon that on which the plaintiff seeks to compel him to make settlement with her. By way of cross-action he set up certain facts respecting the mariner in which the plaintiff’s indebtedness arose, and alleged that, by reason of mistakes in calculation, the several notes which she executed and delivered to the firm of Jones Brothers & Butt, and which he after-wards acquired in his individual right, did not embrace the full amount of principal and interest upon which the parties to the contract had agreed. So much of the answer as embraced this cross-action was stricken on demurrer. Thereafter the defendant amended his answer, and in substance alleged that the original amount of the plaintiff’s indebtedness to Jones Brothers & Butt was $1,250; that, in giving her credit and extending the time for payment of this sum, “ it was agreed that the same be paid at $10 per month, and that interest be added to said sum of $1,250 at the rate of eight per cent, per annum for the average time; . . that interest was calculated, and that, by some mistake, instead of interest being added at the rate of 8 per cent, for the average time, only about two & 53/100 per cent, was added to the principal amount or cash
Judgment reversed.