Walter v. Dickson

175 Pa. 204 | Pa. | 1896

Opinion by

Mr. Justice Green,

At the time the present action was brought the principal of the mortgage in question had been overdue for several years. In order to maintain the suit it was not necessary for the holder of the mortgage to make any preliminary demand for the payment of either 'the principal or interest, nor is it necessary to make such a demand in order to recover attorney’s commissions which were stipulated to be paid by the debtor. This was expressly decided in Warwick Iron Co. v. Morton, 148 Pa. 72, where it was said in the opinion of the court below, affirmed by us, that, “We can find no reported case in which it has been held that to recover attorney’s commissions on a sci. fa. sur mortgage demand mustfirst be made. The right to recover such commissions is distinctly recognized in ” several cited cases.

So far therefore as this item of attorney’s commissions is concerned a previous demand is not necessary.

But it is contended for the appellants that upon the special facts set forth in the affidavit of defense they were misled by the plaintiff as to the time of payment, and that no suit was necessary to enforce the mortgage. Substantially, the defendants allege that the plaintiff’s agent notified them some weeks prior to the issuing of the sci. fa. that the mortgage was overdue and that payment must be made, unless the defendants would agree to give a new mortgage for |1,900, the one in suit being for $1,800. That this proposition was declined, and thereupon the defendants arranged to borrow $2,000 at a lower rate of interest, and “settlement was duly arranged for October 9, 1895, at said company.” That the agent was duly notified about a week before that date, and was requested to be present at the settlement, and that the principal and interest of the mortgage would then be paid. Without stating that the agent agreed to wait mitil the day named, or that he agreed to anything, the affidavit alleges that on the day preceding the proposed settlement the plaintiff’s agent issued the writ. The affidavit further alleges that the last semiannual interest had been paid on July 28, 1895, and that defendants “ stand ready ” to pay the principal and interest, and that the amount will be paid upon the satisfaction of the mortgage, but denies any liability to pay attorney’s commission.

It will be perceived that the affidavit omits entirely to state material facts which are quite necessary to this defense. It does not allege that any tender was made either in or out of court of any part of the debt or interest. It does not allege that the plaintiff’s agent agreed to wait until the day of the alleged settlement for the payment of the money, or that he agreed to any delay whatever, and it does not aver that there was any agreement of any hind in reference to the actual payment of the debt.

The appellants rely upon the case of National Savings Fund v. Waters, 141 Pa. 498, but an examination of the case shows that its facts were entirely different from those set up in' this case. There, a statement giving the amount due was demanded by the defendant company which was to pay the debt. Such a statement was made out and handed to defendant giving the precise amount due, and concluding at the end, with the words, “good only until Sept. 11th, 1890.” Relying upon this the defendant prepared to pay, and did actually pay, the whole amount of principal and interest on the day named, to wit, Sept. 11, 1890, and took the receipt of the plaintiff’s attorney for the amount paid. But in the meantime and before the day named the plaintiff’s attorney issued the scire facias, and then claimed the attorney’s commission. The court below and this court denied any right to the commission, holding that the plaintiff had, under the words contained in the statement, practically agreed that the defendant should have until the day named to pay the money.

There are no such facts in the present case. In Lewis v. Germania Savings Bank, 96 Pa. 86, which also was a scire facias sur mortgage, the defendant, who was the terre tenant, alleged in his affidavit of defense that he called at the bank and offered to pay the interest and also the principal debt, but was informed by the bank officers that “ they did not need the money and to let it stand until the Butler county matter was disposed of,” and that shortly afterwards without making any demand of principal or interest, suit was brought on the mortgage. It was contended that under the circumstances and the agreement to give further time, the bank was not entitled to recover attorney’s commissions. Held that this would have been so, if the defendant, even after suit brought, had been reasonably prompt in paying or tendering payment of the debt and interest.

These cases settle the questions involved in this. We consider the affidavit clearly insufficient and must therefore sustain the ruling of the court below.

Judgment affirmed.