135 So. 2d 258 | Fla. Dist. Ct. App. | 1961
Dissenting Opinion
(dissenting).
I respectfully dissent from the majority judgment of affirmance. Here the appellant, a mortgagor, failed to pay a principal
Before any foreclosure, the attorneys for the mortgagor and the mortgagee met and agreed upon a basis for restoring the mortgage to good standing. In the course of that settlement, the question arose whether the additional interest was to be applied on the entire unpaid principal balance, or only on the defaulted principal and interest, from the time of default to the time of reinstatement. The mortgagee’s attorney contended for the former, but the mortgagor’s attorney was able to convince him that under the law the latter was the limit of the application of the deferred penalty interest. The difference between the two contentions was approximately $200. The mortgage then was restored to good standing by payment to the mortgagee of the overdue installments of principal and interest, with the penalty interest thereon, and by payment in advance of the next installment of principal and $300 to the mortgagee’s attorney. Thereafter the mortgagee’s attorney confirmed the reinstatement of the mortgage by letter to the attorney for the mortgagor, as follows:
“Re: Edith P. Reiss — Aldan, Inc. mtg.
“Dear Mr. Tatham:
“This is to acknowledge receipt of your letter of September 11th together with check.
“Please be advised that Mrs. Reiss’ mortgage is now reinstated and is in good standing. The next payment due will be the payment of interest due on November 1, 1959.”
Later, through another attorney, the mortgagee made demand on the mortgagor for payment of additional penalty interest on the entire unpaid balance of the mortgage, for the period the default had continued. She then brought this suit to foreclose, and sought acceleration. The court properly denied the attempted acceleration, but committed error in decreeing foreclosure for the additional interest claimed.
The authorized acts of the mortgagee’s agent were binding on her (Thomkin Corp. v. Miller, 156 Fla. 388, 24 So.2d 48, 49), and when her attorney, negotiating in good faith, reached a compromise and settlement of the disputed interest claim, the mortgagee as his sui juris principal could not disclaim that settlement agreement. 11 Am. Jur., Compromise and Settlement, § 31; 12 Am.Jur., Contracts, § 140, note 15 and 20; 3 Corbin on Contracts, § 617, p. 757, (1960). See McGill v. Bison Fast Freight, 245 N.C. 469, 96 S.E.2d 438, 443-44; Schmalzriedt v. Titsworth, 305 Mich. 109, 9 N.W.2d 24, 28; Restatement (Second), Agency, Comment, § 178(a) (1958). Cf. Hendrick v. Redfearn, Fla. 1956, 88 So.2d 620, 623. Moreover, having agreed upon and accepted payment of the defaulted sums and reinstated the mortgage, the mortgagee was in no position to reassert the prior delinquency and foreclose without first having established a right to rescind and rescinded the reinstatement agreement. Corbin, id., §§ 606, 608.
Therefore, I am of the opinion that the chancellor was in error in entertaining the foreclosure suit and in decreeing foreclosure.
Lead Opinion
The chancellor entered a decree of foreclosure of a mortgage in favor of the plaintiff, Edith P. Reiss, against the defendant, Tatham Mortgage Co. and others. Both the plaintiff and defendant filed appeals. Defendant, Tatham Mortgage Co., contended that nothing was due on the mortgage so that the foreclosure suit should have been dismissed while plaintiff, Edith P. Reiss, contended that the chancellor should have entered a decree for the full amount of the mortgage instead of only for the amount past due.
We have considered the merits of the contentions of both parties and we find that there is enough evidence to sustain the findings of the chancellor and that no abuse of discretion has been made to appear so the decree should be affirmed.
Affirmed.
Rehearing
On Petition for Rehearing Granted
After oral argument and reconsideration, the majority of the court adheres to the opinion and judgment rendered on June 1, 1961, CARROLL, J., dissenting.
