19 Wend. 104 | N.Y. Sup. Ct. | 1838
By the Court,
A peremptory mandamus, it is urged, should issue on the grounds : 1. That the whole amount of the condition of the bond had become due; and 2. Even if the construction of the court below was correct, the plaintiff was entitled to judgment upon the penalty to secure the payment of the accruing instalments.
As to the first ground assumed in behalf of the relator: The condition of this bond must be construed agreeably to the rule applicable to every other contract, and that is, according to the intent of the parties, as derived from the language used in the instrument. Courts have no other guide, and when the intent is thus ascertained, they are bound to carry it into effect unless repugnant to law, whatever may be their notions of its wisdom or equity. Now, with all due respect for the learned court below, it appears to me that the intent and meaning of the parties could not be more plainly expressed in the English language, than it is here : indeed, as is obvious enough, special pains have been taken in respect to this part of the contract, for some sixty folio are employed for no other purpose. The defendants have thereby deliberately and solemnly agreed, that in case of default in any one payment of interest, the whole principal and interest should become due and payable. Eor aught we know, and
But it is supposed the statute, 2 R. S. 353, § 12, 13, has . conferred powers upon the courts to dispense with it. By the 13th §, in an action upon a bond conditioned to become void on the payment of a less sum, the defendant may at any time before judgment, pay to the plaintiff or bring into court for his use, the principal sum and interest due, together with costs, and thereupon such action shall be discontinued. Now, I am unable to comprehend how this provision touches the real and only question involved in the case, or how it has any bearing upon the case at all until after that question is determined. True, by paying the principal sum and interest due, &c. the action shall be discontinued ; but the inquiry still is, what sum is due 1 As we have already said, without dispensing with the solemn agree- • ment of the parties we must say the whole sum, principal and interest is due, and if so, the whole must be brought into court according to the section. If any authority was wanting in support of the above view, both as to the construction of the contract and the powers of the court, we might refer to the recent case of James v. Thomas, 5 Barn. & Aid. 40. There the condition was for the payment of £280 in three years, with interest half yearly, “ and also that the obligee should be at liberty to call in and demand payment of the said principal money and all interest thereon, in default of the payment of the said interest half yearly.” One year’s interest being due and unpaid, the plaintiff demanded in the action the principal as well as interest. A motion was made to the king’s bench for a rule staying all proceedings, on payment of the year’s interest, &c.; but the learned judges were clear that the whole principal had become due
A distinction was suggested between this case and those referred to, namely, that it was to be inferred from these cases that the principal was due, at the time of the contract entered into postponing the payment, and that a non-compliance with the terms of postponement revived the present indebtedness. This was an argument used by Lord Mansfield in a peculiar case, 3 Burr. 1370; but the rule has never been put upon any such distinction, as will be seen by. reference to the cases and books of practice; and surely there is no ground for it unless we deny to parties the power to fix the terms of payment of a debt originating with and at the time of the contract.
II. But even if we could have concurred with the court below in the construction of the condition of the bond, we think they erred in the disposition of the case. It was at first decided under the act, 4 Ann, c. 16, § 13, from which our 12th § is taken, l R. L. 518, § 6, 2 R. S. 353, § 12, that a bond conditioned for the payment of money by instalments did not come within it; but it was afterwards settled that the court would stay the proceedings if the defendant was solvent on payment of arrears and costs, and giving judgment as a security for future instalments, with stay of execution till they become due, 2 Strange, 814, 957, 2 Wm. BI. R. 706, Tidd, 485, 2 Archb. 206, 3 Burr. 1374. Burns, 272; and not otherwise. See 2 Archb. 206, and cases referred to. The statute of 4 Ann in terms applied only to bonds conditioned for the payment of a gross sum, and contemplated the payment of the whole amount; hence it declared the paying of the money into court should operate as a discharge of the bond, and that the court should give
Upon either of these grounds we are of opinion a peremptory mandamus should issue.