74 Pa. Super. 272 | Pa. Super. Ct. | 1920
Opinion by
Frank W. Earned & Son negotiated a loan of $1,000. from the plaintiff to the defendant which loan was secured by bond and mortgage payable “in five years.” The Larneds attended to the entire transaction and subsequently collected the interest from time to time and paid it over to the plaintiff. In September, 1912, defendants paid. Earned & Son $300 on account of the principal of the mortgage and thereafter other sums until December 16, 1916, when the final payment was made. Earned & Son failed to pay over these sums and in concealment of their dishonesty from time to time paid amounts equivalent to the interest on the entire sum. Shortly after the last payment was made the husband of one of the mortgagors wrote to the plaintiff informing him that since the mortgage was paid it should be satisfied. What transpired afterwards between the plaintiff and Earned & Son we will refer to later.
Judgment was entered on the warrant of attorney which was afterwards opened and the matter submitted to a jury who found for the defendant. The court entered judgment n. o. v. for the plaintiff for the amount of the mortgage and interest. At the trial the learned trial judge held that the words “in five years” gave the mortgagors the right to pay the money at any time in five years and that the installments were paid according to the tenor of the bond. In entering judgment n. o. v. the court stated that in construing the above words as permitting payment within the time he followed Horstman v. Gerker, 49 Pa. 282, but that after trial his attention was called to Allentown School District v. Derr, 115 Pa. 439, which he concluded decided the contrary.
The judgment is reversed and the record remitted with instructions to enter judgment upon the verdict.