Ready v. Sommer

37 Wis. 265 | Wis. | 1875

Ryan, O. J.

The court below should perhaps, on the motion of the respondent, have required the appellants to make their answer more definite and certain. But the respondent, not having made such a motion, could not properly object on trial to evidence establishing the extension of the time of payment pleaded' in the answer.

The mortgage in suit matured May 6, 1873. -In the month previous, nothing being yet due for principal or interest, the appellant paid the interest on this and another mortgage, the respondent giving a written receipt extending the time for payment of both mortgages. The prepayment is.a sufficient consideration for the extension, under all the authorities; and we think that we ought to hold that the payment sufficiently appears in the paper as a consideration to support the agreement to extend. The payment and the extension are parts of one transaction, evidenced by one paper; the payment benefiting .the one party, and the extension the other. ■ We cannot help thinking that any person of ordinary intelligence, in the language of the books, would understand the payment to be a consideration of the extension, although ex ábundanii cautela another consideration is formally stated. But the two are so coupled by the word, further, that the formal consideration does not exclude the payment as a consideration. And so the agreement does not fall within the rule in Kellogg v. Olmsted, 25 N. Y., 189; Parmelee v. Thompson, 45 id., 58, and that class of cases, if we should feel bound to follow that rule in this state.

Were this otherwise, the parol evidence offered should have been admitted to prove the consideration. Frey v. Vanderhoof, 15 Wis., 397; Ballston Spa Bank v. Marine Bank, 16 id., 120.

The receipt is'for the interest on $1,000 due on or about April 21, 1873, and $1,000 due on or about May 5, 1873. No other such sum appearing to be payable by the appellant to the respondent about the latter day, the presumption is that the payment is on the mortgage in suit. If that were in doubt, parol evidence was clearly admissible to show it. And the agreement is to extend the time for the payment of the $2,000 until one year from April 21,1873, and for May 5, 1873, $1,000 payment each.

It is of course impossible not to understand that the word, for, is applied to the latter date in the same sense as the word, from, to the former date. And the meaning is very plain, notwithstanding the apparent misuse of the word, for. . We think that we would be abundantly j ustified by authority in reading from instead of for, if it were necessary. See Winterfield v. Stauss, 24 Wis., 394, and Att'y Gen’l v. West Wis. R. R. Co., 36 id., 466, and the cases there cited. ,• But we think the word, for, of itself, sufficiently explicit to give effect to the agreement. The very learned author of Wedgewood’s Diet. Eng. Etym., states that the radical meaning of for is in front of; and applying it to time, adds that “ the event of the present moment is before or in front of the train of futurity.” Dr. Webster gives as a correct, popular meaning, in place of. Either gives full expression to the extension of a year from the date of maturity. Benignior senteniia in verbis dubiis est prceferenda. And this construction permits the manifest agreement of the parties to prevail, as it ought.

The foreclosure appears to have been commenced in April, 1874; and, in view of the extension, was of course premature.

By the Court.— The j udgment of the court below is reversed, and the cause remanded with directions to dismiss the complaint.