68 N.Y. 365 | NY | 1877
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *367 The agreement between the parties must be read as a whole, and effect given to every part thereof, so far as possible. Inconsistent clauses must be reconciled, if they may be, and effect given to the intent of the parties as gathered from the four corners of the instrument. These are familiar rules of interpretation.
Although the plaintiff in terms acknowledges to have received from the defendant an assignment of the bond and mortgage mentioned, in full payment of the bill of goods sold, the other parts of the instrument disclose the fact that he only received it in payment, at his option, to be made on the first day of May thereafter. By the terms of the agreement he reserved the right to elect, on the first day of May after the making the agreement, between the mortgage and the note of the defendant then given for the same debt. The terms employed by the parties, somewhat technical, describing the note as collateral to the bond and mortgage, have no significance. The substance of the transaction is to be ascertained from the whole agreement, and not from particular words used in a single sentence. The defendant assigned the bond and mortgage, and at the same time delivered her own promissory note to the plaintiff in consideration of a debt owing by her, and the plaintiff had a specified time to elect whether to retain the bond and mortgage in payment of his debt, or to reassign it and retain the obligation of the defendant, his debtor.
The plaintiff did elect to reassign the mortgage and retain the note now sued upon. It is objected, however, that he did not give notice of his election to the defendant. The answer to this is that he was not required by the terms of the agreement, express or implied, to seek out the defendant and give her such notice. The agreement is that in the event of his not having disposed of the mortgage on the first day of May next thereafter, he would deliver it or the note to Mrs. Sheehan, the defendant, so that after that day he should not hold both securities. He was not bound to tender the one security to the defendant in order to hold the other, and was *369 not called upon to take any action except at the request of Mrs. Sheehan, the promisee. The defendant could have compelled an election on the day named, and the surrender of one of the securities, but the plaintiff was not in default until a failure to elect and to comply with the agreement upon request made. It was not optional with the defendant whether to demand the mortgage or the note, upon failure of the plaintiff to notify her of his election, and tender the security he elected not to keep. In other words, the right of election was not transferred from the plaintiff to the defendant by the mere omission of the plaintiff to act promptly and give notice of his election to the defendant; and yet this is the effect of the judgment in this action. The omission of the plaintiff to seek out the defendant and tender a reassignment of the mortgage precisely on the day named, is no evidence that he elected to retain it and surrender the note. We think the learned City Court of Brooklyn misinterpreted the agreement, and that for this error the judgment should be reversed.
But there was evidence for the jury that the plaintiff did give notice of his election to retain the note, by letter addressed to the defendant through the post-office, and that the day after the transmission of the notice the husband of the defendant, who was also her agent, called upon the plaintiff, and requested him to retain the mortgage for a time, saying that it would be paid, that at least it would be paid before the note would become due, and he requested the plaintiff not to reassign the mortgage then, and made no claim to a surrender of the note. The jury might, upon the evidence, have found a waiver of a strict performance of the condition at the day, if, indeed, the plaintiff had failed in a literal performance of the actual or implied conditions of the instrument, and it was error for the court to refuse to submit the question of waiver to the jury as requested. But we think there was no omission or failure of the plaintiff to do any act which he should have done to entitle him to reassign the mortgage upon request by the defendant, and retain the note in suit. *370
The transfer of the note by the plaintiff in violation of his agreement, did not change or vary the rights or obligations of the parties. It was a mere promise not to use the note, but it did not qualify or modify the other parts of the agreement.
The judgment must be reversed, and a new trial granted, costs to abide event.
All concur, except MILLER, J., not voting.
Judgment reversed.
