166 A. 393 | Conn. | 1933
August 28th, 1916, Samuel Rosenberg, the owner of a farm in Franklin, executed a note and mortgage on the farm for $2000 to James Mackey. July 7th, 1929, Paul Dobrucki became the owner of the property subject to the mortgage. July 21st, 1930, James Mackey assigned the note and mortgage to Mary Mackey, the plaintiff. The note and mortgage contained provisions that the mortgage should not be foreclosed if interest on the note and taxes, assessments and insurance on the mortgaged property were paid "promptly." In the mortgage itself, it was provided that so long as these payments were made "promptly" the grantee should not be entitled to foreclose for a period of twenty-five years. The plaintiff claimed that the defendant had failed to pay promptly the *668 taxes due the town and the interest in accordance with the provisions of the note and mortgage.
From the finding, it appears that town taxes in Franklin are due April first of each year, and are payable without interest within thirty days thereafter. The defendant paid the taxes for 1930 on May 5th; for 1931 on June 9th, together with interest of $1.42; and for 1932 on June 15th, together with interest of $2.48. On June 13th, 1932, two days before the defendant paid the taxes for that year, the attorney for the plaintiff called upon the defendant upon the premises and demanded payment of the principal and interest on the mortgage note, because of failure to pay taxes and to meet interest payments promptly. The defendant did not make the payment demanded on June 13th, 1932, but told the attorney that he would call at his office the following Friday and make arrangements to procure a bank mortgage and pay the plaintiff. He did not appear at the office of the attorney on that day nor at any time since, but paid the taxes on June 15th. The present suit was commenced by service on the defendant July 14th, 1932.
It appears that prior to the payment of the interest falling due on August 28th, 1932, after this action was commenced, previous payments had been made by check sent through the mail addressed to the holder of the note at 12 Whitman Street, Malden, Massachusetts, and had been accepted, although some payments had been made when they were several days past due. On August 26th, 1932, the defendant sent his check for the interest due August 28th to the plaintiff by registered mail, directed to her address at Malden. In the previous April, the plaintiff had moved to another address of which the defendant had received no notice. The registered letter was not delivered to the plaintiff, but was returned to the defendant *669 and was presented by him unopened in evidence at the trial; and, when opened in court, contained the check.
Upon these facts, the trial court determined that there had been no default in the payment of taxes or interest such as to entitle the plaintiff to foreclose the mortgage. The only question involved upon this appeal is the correctness of this conclusion.
The note was without apt words of negotiability and was nonnegotiable for this reason; Windsor CementCo. v. Thompson,
All payments of interest previous to August 28th, 1932, had been accepted by the plaintiff, even though late. With reference to that payment, mailed in time but not delivered and received because the plaintiff had changed her address, it is not equitable that she should be allowed to take advantage of the situation. "`The rule is well settled that if a person to whom *671
money is due, either by express assent or direction, or a course of dealing from which such assent may be inferred, authorizes its transmission by mail, the person from whom it was due is absolved by evidence that it was duly deposited with a proper direction in the post-office.'"Console v. Torchinsky,
We have followed counsel in discussing the failure of the defendant to make the payment of interest. This occurred after the action was brought, but as it is an equitable proceeding it would have been proper to amend the complaint to include it. Instead of doing this, the plaintiff set it up in her reply. This was not proper procedure. The office of a reply is to meet matter averred in the answer. It should not be used to set up facts for the purpose of obtaining distinctive affirmative relief. Watson v. Ruderman,
There is no error.
In this opinion the other judges concurred.