Massaker v. Mackerley

| New York Court of Chancery | Oct 15, 1853

The Chancellor.

It was unnecessary for the complainant to take issue upon the answer. The defence set up cannot deprive the complainant of the relief prayed for, nor is it of a character to throw the burthen of any costs upon the complainant. On the first of April, 1852, there was one thousand dollars due on the bond and mortgage. The first reason given by the defendant why he did not pay it, .is that, a year before, in a conversation between the parties, the complainant told the defendant that he did not wish him to pay any more of the principal when the same became due; that all the complainant wanted was his interest; and that, if the defendant paid the principal, he, the complainant, would be obliged to lend it out again, and he wished the defendant would keep the money and pay him interest therefor ; that the defendant replied that he did not like to have the matter remaining in that situation, because, if he relied upon the complainant, and failed to raise the money when it became due, the complainant might then call upon him for it, and put him to great inconvenience to raise the same ; whereupon complainant told defendant he need have no' fears on that account, because, if he, the complainant, should happen to stand in need of the money when it became due, he would give timely notice, so that the defendant would be able to raise the same. The defendant says that he relied upon this promise, and as the complainant gave him no notice, it is inequitable that the court should sustain these proceedings.

The promise amounts to nothing. It was without consideration, and was made in a manner, according to the defendant’s own statement, not to induce the defendant to rely upon it. Nor do I see that, under the circumstances, any moral delinquency can be fairly charged upon the complainant. When the money became due the case was different. He had lost the evidence of his debt. He then told the defendant he required payment, and he waited upon him for nearly two months. Was not this timely notice ?

Another ground of defence is that the defendant was not bound to pay the money unless the complainant produced the bond and endorsed the payment on it, or gave the defendant a sufficient indemnity against the bond and mortgage; and that the court ought not to decree against him until the indemnity is given.

If the defendant was entitled to any indemnity before paying the money, he can derive no benefit from that fact in this suit, unless he shows he tendered himself ready to make the payment, and demanded such indemnify. But 1 do not think he was entitled to any indemnity. There is no reason to doubt the complainant’s allegation, that the bond and mortgage had been surreptitiously taken out of his possession. The defendant did not doubt it. This he admits in his answer. Why was indemnity necessary ? The receipt of the complainant for the thousand dollars was good against all the world. It was as good a protection to the defendant as any security the complainant could give him. No matter what disposition the complainant had made, or might make, of the bond and mortgage, such receipt would always be available as so much paid upon them.

Nor do I see any propriety now in this court’s compelling the complainant to indemnify the defendant before making a final decree in the cause. The decree of this court will protect the defendant against any other claims upon the bond and mortgage.

The complainant is entitled to a reference, and to a final decree, with costs, upon the coming in of the master’s report, stating the account, &c.