Nearing v. Hathaway

128 A.D. 745, 113 N.Y.S. 318, 1908 N.Y. App. Div. LEXIS 572

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 25, 1908
• Status: Published

Opinions

Kellogg, J.:

J. J. Hathaway held a mortgage for $300 upon the plaintiff’s house and lot, the interest payable annually, and $25 óf principal payable February 12, 1905, and annually thereafter, in which was the usual interest clause giving the mortgagee the right to declare the whole amount due on failure to make any payment within thirty days after it was due. The first payment of interest became due February 12, 1903. February 6, 1903, she wrote the mortgagee that she did not know what day that- month the interest was due, and asking him if it would be all right if she got a check to him at any time during the month. This letter was delivered by the postal authorities to A. J.. Hathaway, the defendant, who swears the envelope was directed to him. He opened it and remailed it to the plaintiff, with the indorsement thereon : “ Your interest is now due-; deposit the money in the bank at Cooperstown and send me the certificate by mail to Otsdawa, Otsego .Co., N. Y. — To A. J. Hathaway.” .Upon receipt of that letter she wrote a second letter and directed it to A- J. Hathaway, saying she wks in need of money and if he would let the interest run she would pay him interest on the interest; if not ■ she would get the money to him. Sometime in March, not receiving a reply, she again wrote, asking him not to make her any trouble, that she would get the money to him inside of three days, and in the latter part of March or the fore part of April not receiving a reply to this letter, she again wrote asking him not to make her any trouble, that she would get the interest money for him right along if he required it. No reply was received. The four letters were received by the defendant. In. June she was informed that the mortgage was about to be foreclosed, and she saw the attorney for the mortgagee who told her the whole amount had become due and served the summons and complaint in foreclosure upon her. She then saw the mortgagee, explained the situation to him and he agreed to let the mortgage run if she would pay the interest and costs. The costs amounted to $30 and there was $18 interest due. She had the interest money and made various efforts to raise the amount of the'costs, and in August sold the property for $400, paid the mortgage arid costs, and brings this action to recover damages, claiming that the property was -worth to her $800, and the jury have given her $200 damages.

The plaintiff and the husband formerly lived in a house belonging to the defendant and left it with the rent unpaid. The obligation was probably the husband’s and not hers. The defendant swears that when he received the first letter he thought it might refer to - this rent matter and, therefore, wrote as he did. He probably, by the plaintiff’s mistake, expected to get even on the rent matter.

I cannot see that the answer written by the defendant to the plaintiff put her off her guard, or led her in any way to believe that the money must not be paid according to the tenor of the mortgage. His -letter demanded immediate payment, and notified her that it was past due. She did write three letters asking for more time, which he did not answer. The mortgagee says that if he had received the letters he would have answered them and probably would have let the interest run until fall, or perhaps a year, if he thought the security was good. The defendant swears that he had no knowledge or information with reference to the mortgage. I do not think the plaintiff has shown any actionable wrong by the defendant. If he had written telling her the mortgage need not be paid, or if she had deposited the money in the bank pursuant to his letter, it is apparent she might have been deceived. The plaintiff understood from his letters that it was necessary for her to give the matter immediate attention. When her second, third and fourth letters remained unanswered, after the supposed mortgagee had demanded immediate payment, the only conclusion she could arrive at was that no change had occurred in his mind and that immediate payment was still required. The injury alleged is not the natural or probable consequence of the defendant’s acts, She neglected to make the payment demanded by him, and the demand certainly held good until some word from him indicating that a change had occurred. She, therefore, acted unreasonably, and it is not probable that her action was induced by the defendant’s letter or the failure to receive replies to her other, letters, but arose from her inability to pay her interest as her supppsedi'unortgagee had demanded it. The delays were at her risk. If we. assume that a cause of action is shown, the damages are clearly excessive. If the place was worth $800 or $600, she probably could have borrowed the money again ; the only legal damage she could have sustained was the amount of foreclosure costs which she was compelled to pay, and possibly the $25 which it is claimed is due to her attorney It was not the natural and probable result from the defendant’s acts that she would secretly sell the place for about half of its value. Had the mortgage foreclosure proceeded to sale, her situation Would have been much more favorable, as we must assume the property would have realized about its fair value. I favor a reversal of the judgment.

All concurred, except Sewell, J., dissenting in opinion in which Chester, J., concurred: