Jones v. Ennis

25 N.Y. Sup. Ct. 452

• Court: New York Supreme Court
• Decided: September 15, 1879
• Status: Published

Opinion

LEARNED, P. J. :

The plaintiffs insist that, as the defendant Ennis received and retained the indorsement upon the contract, he assented to the terms ; and that the indorsement is to be regarded as expressing the agreement of the parties. But the answer to this argument is that the original contract expressed the agreement of the parties ; and there is no doubt whát that contract was. One party thereto could not change it by merely making an indorsement thereon and sending it back to the other party so indorsed. The other party, Ennis, had a right to the contract, as it wras originally made; and by his retaining the contract so indorsed he did not assent to any proposed modification.

By the terms of the contract there was a certain amount, being in fact about $669, owing thereon April 12, 1868, including the interest. On that day Pumpelly indorsed thereon a statement that the amount was settled as due that day at $1,080; that $300 was to be paid in October, and further time given for the balance, He made this amount by compounding the interest.

Now, it may very well be true that, if Pumpelly had computed the amount then owing at simple interest, and had stated it on the contract, the simple interest might have been then added to the principal, so as to form a new principal, and to draw interest for the future. (Van Benschooten v. Lawson, 6 Johns. Ch., 313.) But that was not what he did. He computed compound interest for the past twenty-two years and stated an amount to be then owing on the contract which was not owing.

If he had only stated the amount which was then actually owing, about $669, and the parties had agreed to pay interest on that amount for the future, a different question would have been presented.

But, as the case is, it must be governed by the decision in Young v. Hill (67 N. Y., 162), -which is very closely analogous with the present, and which seems to overrule Stewart v. Petree (55 N. Y., 621). The compounding of the interest and the statement of a balance upon such compounding were in that case made by the debtor himself, so that it was more obligatory on him than the indorsements made by the creditor in the present case.

The same reasoning applies to the receipt given by Pumpelly November 12, 1872. This was given at the time that Ennis, by the hands of Barnes, made a payment of $300. It stated the balance due on the contract to be $1,185, while in fact the amount owing, according to the terms of the contract at simple interest, was only about $486. Ennis could not safely send back this receipt, for it was his evidence of the payment of $300. And the statement therein by Pumpelly of the balance due did not form any new contract.

The equitable title to the land was in Ennis. Pumpelly held the legal title as security for the amount payable on the contract. Eunis made a payment on the contract and Pumpelly gave a receipt for the amount paid, stating also the balance payable, and that it was to be paid in five annual payments.

There is no other evidence of assent thereto or agreement, oi* the part of Ennis, than this, that he did not return the receipt The holder of the land could not by inserting in that receipt a statement of the balance, made, as it appears, by compounding, impose upon Ennis terms of payment different from those of the contract.

The judgment should be affirmed, with costs.

Present — LeakNED, P. J.. and BoaudmaN, J.; Follett, J., taking no part.

Judgment affirmed, with costs.