89 N.J. Eq. 278 | New York Court of Chancery | 1918
This bill is filed to foreclose two mortgages made by Jacob Win to Christian D. Emson, one dated May 23d, 1883, for $3,-
In March of 1896, Emson rendered to the mortgagor a statement of their dealings, which, for a better understanding, I have rearranged, leaving the items intact, and as rearranged, it reads:
Dr.
Mortgage May 23d, 1883........... $3,000 00
Interest to March, 1896 ........... 2.310 00
$5,310 00
Cash Cr. interest paid............ 1,560 00
$3,750 00
Mortgage July 9th, 1884........... $1,000 00
Interest to March, 1896........... 700 00
1,700 00
Book account .............. 1,292 34
$6,742 34
Or.
(April 24th, 1892), cash, J. Win... $400 00
September, 1891, by Jack Davis.... 87 50
(August 24th, 1S92), Pennington ins............................ 2,050 00
Three small show-cases ........... 15 00
1894, one large Pros. Pettu......... 30 00
(February 16 th, 1894), insurance check ......................... 1,395 45
(March 8th, 1895), Manchester.... 430 00
(April 15th, 1895), Mt. Holly..... 1,222 24
5,620 19
Amount due ............... $1,122 15
The dates in parentheses do not appear in the statement; they were furnished by the complainant from her father’s books. In 1891 the buildings on the mortgaged premises were destroyed by fire, and the items represent the insurance collected by the mortgagee. It will be observed that interest was calculated upon the principal of the mortgages from the date of their execution to the date of the settlement, whereas, it is ob
I have calculated the interest from the dates of the payment of the insurance money to the date of the settlement, March 24th, 1896, and if the method upon which it is worked out does harm to either party, counsel may direct my attention upon motion for the final decree.
Balance as per statement of March 24th, 1896 ................................ $1,Í22 15
Interest—
J. Win, $400, April 24th, 1892, 3 yrs., 11 mos.............................. $94 00
Pennington insurance, $2,050, August 24th, 1892, 3 yrs., 7 mos.................... 440 75
Insurance check, $1,395.45, February 16th, 1894, 2 yrs., 1 mo., 8 days............ 176 27
Manchester, $420, March 8th, 1895, 1 yr., 16 days ............................. 26 28
Mt. Holly, $1,222.24, April 15th, 1895, 11 mos., 9 days......................... 68 98
Additional credit agreed to by complainant, 73 50
- — —■ S79 78
$242 37
Interest to be added-—
On $824.28, from April 18th, 1891, to March 24th, 1896, 4 yrs., 11 mos., 6 days (hereafter explained) .................................... 243 95
Leaving amount due March 24th, 1896............ $486 32
Interest on this sum from March 24th, 1896, to the • date of the master’s report, February 5th, 1918, 21 yrs., 10 mos., .12 days...................... 624 89
Amount due complainant ................. $1,111 21
The item of $243.95 is interest on the balance struck April 18th, 1891, on the book account, $1,292.34. It is a proper charge in the general adjustment of the interest. Interest on the running account between the parties is not allowed.
The rule is one of evidence and not of liability, and even if the account rendered be entertained as an account stated, the defendants would not be precluded from avoiding it on the grounds of fraud or mistake. “An account stated or settled is a mere admission that the account is correct. It is not an estoppel. The account is still open to impeachment for mistakes or errors. Its effect is to establish prima facie the accuracy of the items, without other proof.” Lockwood v. Thorne, 18 N. Y. 285; Eames Vacuum Brake Co. v. Prosser, 157 N. Y. 289; Spellman v. Muehlfeld, 166 N. Y. 245; Brown v. Vandyke, 8 N. J. Eq. 795.
The exceptions will be sustained to the extent indicated, and the master’s report will be modified accordingly. The complainant may take a decree for the amount herein found to be due.