Wood, ].,
(after stating the facts.) The issues between appellee and Isaac Less, and between appellee and Gussie Less are different. We will therefore treat them separately.
First. The contract evidenced by the notes and deed of trust was not indivisible, as assumed by learned counsel for appellants. Excerpts froni the deed of trust applicable here are as follows:
“Whereas, the said Isaac Less is justly indebted to the said party of the third part in full sum of $4,500, which is evidenced oy nine notes of even date herewith for the sum of $500 each, each of said notes being payable on or before two years after date, and bearing 10 per cent, interest from date,” etc.
“Now, if said Isaac Less, his heirs, executors or administrators, shall pay the sum of money specified in said nine promissory notes, with all the interest that may be due thereon, when the same shall become due and payable according to the tenor and effect thereof, and shall faithfully keep and perform the agreements aforesaid, and concerning the payment of taxes aforesaid, then this deed shall be void, and the property hereinbefore conveyed shall be released at the expense of said party of the first part; but if default be made in the payment of said promissory notes, or either of them, or the interest thereon, according to the tenor and effect thereof, or in the faithful performance of said agreement to keep said edifices insured and pay all taxes lawfully imposed on said property, then, and in that event, or either of them, the whole of said indebtedness, and each and all of said notes, shall become due and be considered due and payable as if due and payable according to the tenor thereof, and this deed shall remain in full force and effect, and the said party of the second part may proceed to sell the said property hereinbefore described, or so much thereof as may be necessary to fully satisfy and discharge the said indebtedness, together with all interest thereon.”
There were nine notes, each in the following form:
“$500.00.
“On or before two years after date I promise to pay M. English five hundred dollars, for value received, to bear interest from date at the rate of 10 per cent, until paid.
(Signed) “I. Less.”
There is nothing here to show an entire and indivisible contract. On the contrary, the fact that the parties on the one side executed, and on the other accepted, nine notes of $500 each, instead of one note for $4,500; and the fact that the deed of trust recited that “if default be made in the payment of said promissory notes, or either of them,” and that in case default be made in certain requirements prescribed in the deed of trust, such as keeping up insurance, payment of taxes, etc., then “the whole of said indebtedness, and each and all of said notes, shall become due and payable — these facts rather indicate to us that the parties contemplated that each note, as well as the entire sum' of all the notes, should be secured by the deed of trust. Each note is complete in itself, without reference to the others, and represents an obligation to pay the sum named therein. The deed of trust and notes and the parol testimony not inconsistent therewith convince us that English and the appellant, Isaac Less, intended by the contract into which they entered that English should loan Less $4,500; that this loan should be evidenced by notes in the sum of $500 each until the entire amount was advanced, and that the sums advanced, to the extent of $4,500, should be secured by the deed of trust of the property named therein. If the parties did not intend that each note should constitute a single and independent obligation, why did they not have the entire sum which appellee agreed to advance evidenced by one note ? It will be observed that all the notes were executed on the same day, and were payable at'the same time. How easy it would have been, if the parties only intended one obligation and one inseparable contract, to have made but one note, instead of nine.
The contract was fully executed on the part of appellant Less by the execution of the notes and deed of trust and the delivery of same to the trustee, Baber, who was the agent or representative of Michael English as beneficiary or cestui que trust in the trust deed. The fact that this was an apportionable contract is clearly evidenced by appellant Less’ conduct in accepting the loan o'f $2,000 when he was notified that the entire sum expected could not be had at once. He certainly treated it as apportionable then. Why did he not refuse the $2,000 when offered and called for a rescission and cancellation of the notes and mortgage? It appears that on account of unexpected contingencies English was not able to advance the whole amount promised at the time the notes and deed of trust were executed. Less was advised of this, and he was promised balance later on in July. If he intended that the contract should be entire and unapportionable, then was the time for him to speak. That he. did not refuse to accept the money is proof convincing that he did not then conceive the idea .of an inseparable contract.
It appears that appellee, while not able to furnish the balance himself, had procured another who was willing to furnish it to appellant on practically the same terms. At least, there is nothing in the record to show that the terms would have been more -burdensome to appellant. Then it appears appellant conceived the idea of an indivisible contract, and refused to borrow the balance from another except upon condition that appellee forfeit the entire amount he had advanced. The contract of appellant as disclosed by the record convinces us that this idea with him was an afterthought for the purpose solely of defeating an honest obligation. Appellee proposed to accept $2,000 without interest and to surrender notes and credit mortgage with balance of $2,500. But no, appellant Less wanted his pound of flesh. His conduct was unconscionable, and it would be monstrous for a court of equity to allow him to profit by .it.
This case, on this point, comes clearly within the rule announced by this court, through Chief Justice Coclcrill, in Levy v. Sayle, 52 Ark. 246. In that case we held that a mortgagee who failed or refused to furnish all the money or supplies which he had agreed to advance might recover the advance actually made, and that the mortgage would stand as security therefor, subject to the right of the mortgagor to have the amount reduced to the extent of any loss directly traceable to the mortgagee’s breach of the contract, and fairly within the contemplation of the contracting parties as the natural result of such breach.
The recitals in the mortgage and the facts of that case were not precisely the same as here, but the facts of this case do not differentiate it in principle from that.
“An apportionable contract enables a certain part of the payment or performance on one side to be recovered before the whole consideration has been given by the other side, but there is nevertheless but a single contract.” 2 Parsons on Cont. § 4, p. * 517, note 1.
Second. The trial court did not allow appellant Isaac Less any damages by way of recoupment for the failure of appellee to comply with his part of the contract. The court was correct in this.
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Wood, ].,
(after stating the facts.) The issues between appellee and Isaac Less, and between appellee and Gussie Less are different. We will therefore treat them separately.
First. The contract evidenced by the notes and deed of trust was not indivisible, as assumed by learned counsel for appellants. Excerpts froni the deed of trust applicable here are as follows:
“Whereas, the said Isaac Less is justly indebted to the said party of the third part in full sum of $4,500, which is evidenced oy nine notes of even date herewith for the sum of $500 each, each of said notes being payable on or before two years after date, and bearing 10 per cent, interest from date,” etc.
“Now, if said Isaac Less, his heirs, executors or administrators, shall pay the sum of money specified in said nine promissory notes, with all the interest that may be due thereon, when the same shall become due and payable according to the tenor and effect thereof, and shall faithfully keep and perform the agreements aforesaid, and concerning the payment of taxes aforesaid, then this deed shall be void, and the property hereinbefore conveyed shall be released at the expense of said party of the first part; but if default be made in the payment of said promissory notes, or either of them, or the interest thereon, according to the tenor and effect thereof, or in the faithful performance of said agreement to keep said edifices insured and pay all taxes lawfully imposed on said property, then, and in that event, or either of them, the whole of said indebtedness, and each and all of said notes, shall become due and be considered due and payable as if due and payable according to the tenor thereof, and this deed shall remain in full force and effect, and the said party of the second part may proceed to sell the said property hereinbefore described, or so much thereof as may be necessary to fully satisfy and discharge the said indebtedness, together with all interest thereon.”
There were nine notes, each in the following form:
“$500.00.
“On or before two years after date I promise to pay M. English five hundred dollars, for value received, to bear interest from date at the rate of 10 per cent, until paid.
(Signed) “I. Less.”
There is nothing here to show an entire and indivisible contract. On the contrary, the fact that the parties on the one side executed, and on the other accepted, nine notes of $500 each, instead of one note for $4,500; and the fact that the deed of trust recited that “if default be made in the payment of said promissory notes, or either of them,” and that in case default be made in certain requirements prescribed in the deed of trust, such as keeping up insurance, payment of taxes, etc., then “the whole of said indebtedness, and each and all of said notes, shall become due and payable — these facts rather indicate to us that the parties contemplated that each note, as well as the entire sum' of all the notes, should be secured by the deed of trust. Each note is complete in itself, without reference to the others, and represents an obligation to pay the sum named therein. The deed of trust and notes and the parol testimony not inconsistent therewith convince us that English and the appellant, Isaac Less, intended by the contract into which they entered that English should loan Less $4,500; that this loan should be evidenced by notes in the sum of $500 each until the entire amount was advanced, and that the sums advanced, to the extent of $4,500, should be secured by the deed of trust of the property named therein. If the parties did not intend that each note should constitute a single and independent obligation, why did they not have the entire sum which appellee agreed to advance evidenced by one note ? It will be observed that all the notes were executed on the same day, and were payable at'the same time. How easy it would have been, if the parties only intended one obligation and one inseparable contract, to have made but one note, instead of nine.
The contract was fully executed on the part of appellant Less by the execution of the notes and deed of trust and the delivery of same to the trustee, Baber, who was the agent or representative of Michael English as beneficiary or cestui que trust in the trust deed. The fact that this was an apportionable contract is clearly evidenced by appellant Less’ conduct in accepting the loan o'f $2,000 when he was notified that the entire sum expected could not be had at once. He certainly treated it as apportionable then. Why did he not refuse the $2,000 when offered and called for a rescission and cancellation of the notes and mortgage? It appears that on account of unexpected contingencies English was not able to advance the whole amount promised at the time the notes and deed of trust were executed. Less was advised of this, and he was promised balance later on in July. If he intended that the contract should be entire and unapportionable, then was the time for him to speak. That he. did not refuse to accept the money is proof convincing that he did not then conceive the idea .of an inseparable contract.
It appears that appellee, while not able to furnish the balance himself, had procured another who was willing to furnish it to appellant on practically the same terms. At least, there is nothing in the record to show that the terms would have been more -burdensome to appellant. Then it appears appellant conceived the idea of an indivisible contract, and refused to borrow the balance from another except upon condition that appellee forfeit the entire amount he had advanced. The contract of appellant as disclosed by the record convinces us that this idea with him was an afterthought for the purpose solely of defeating an honest obligation. Appellee proposed to accept $2,000 without interest and to surrender notes and credit mortgage with balance of $2,500. But no, appellant Less wanted his pound of flesh. His conduct was unconscionable, and it would be monstrous for a court of equity to allow him to profit by .it.
This case, on this point, comes clearly within the rule announced by this court, through Chief Justice Coclcrill, in Levy v. Sayle, 52 Ark. 246. In that case we held that a mortgagee who failed or refused to furnish all the money or supplies which he had agreed to advance might recover the advance actually made, and that the mortgage would stand as security therefor, subject to the right of the mortgagor to have the amount reduced to the extent of any loss directly traceable to the mortgagee’s breach of the contract, and fairly within the contemplation of the contracting parties as the natural result of such breach.
The recitals in the mortgage and the facts of that case were not precisely the same as here, but the facts of this case do not differentiate it in principle from that.
“An apportionable contract enables a certain part of the payment or performance on one side to be recovered before the whole consideration has been given by the other side, but there is nevertheless but a single contract.” 2 Parsons on Cont. § 4, p. * 517, note 1.
Second. The trial court did not allow appellant Isaac Less any damages by way of recoupment for the failure of appellee to comply with his part of the contract. The court was correct in this. Appellant’s counsel have not insisted here upon any error in this respect; we presume, for the reason that they contend that the contract was entire and indivisible. They say: “As to the plaintiff’s original cause of action, we leave that to the sound discretion of the court to give such relief as may be proper under the facts.” The testimony on the question of damages is rather voluminous. We will not go into it, because it would involve, for the most part, a lengthy discussion of fact.s. Suffice it to say, the court was right in not allowing appellant Isaac Less relief on his complaint, or any damages by way of counterclaim.
Third. The questions presented in brief of counsel on appeal of Gussie Less are:
1. “Inadequacy of parties.” Counsel contend that the trustee, Baber, was an indispensable party to the suit. We do not find that this question was raised in the lower court by demurrer or answer. Hence appellants have waived it. Kirby’s Dig. § § 6093, 6096.
Moreover, the cross bill expressly alleges “the death of the trustee, Baber, making a resort to judicial proceedings necessary.” The chancery court would not let the trust fail for lack of a trustee.
2. Appellant Gussie Less set up the five years’ statute of limitations in bar of appellee’s right to foreclose. It appears that the sole object of the intervention of Mrs. Gussie Less was to set up in opposition to the mortgage the bar of the five years’ statute of limitations under a title alleged to have been acquired since the execution of the mortgage. But, as all the rights of Peter English against Isaac Less under the mortgage were saved by the filing of his cross bill to foreclose in time, no subsequently acquired title through Isaac Less could affect English’s right of foreclosure under the mortgage.
It is therefore unnecessary for us to pass upon the question as to whether the conveyances to Gussie Less were fraudulent.
Affirmed.