Upton v. Gould

DOOLING, J. pro tem.

The defendant appeals from a decree of specific performance of a contract for the sale of

[816]

real property. On January 22, 1942, the parties executed a written contract of purchase and sale whereby defendant agreed to sell and convey to plaintiffs the real property in question for the sum of $4,550 “plus transfer charges such as assumption agreement, deed and revenue stamps. The above amount is to be paid as follows:

“Buyers agree to pay the sum of $75 on or before the first day of February, 1942, and a like sum of $75 on the first of each and every month thereafter until such time as the amount owing by the buyers has been reduced to conform in dollars and cents to an F.H.A. loan which is now existing on the property and' which amount as of this date is approximately $3,800 and when their application for a loan has been accepted by the Federal Housing Administration. At that time the buyers may assume the F.H.A. insured loan and the seller will give to the. buyers a deed to the property. ...”

On the date of the execution of this agreement plaintiffs had no money to make a down payment and plaintiffs contemporaneously signed and delivered to defendant an agreement “to sign over our right, title and interest in our automobile . . . to be held as security in lieu of a down payment. ...”

There was an outstanding chattel mortgage on the automobile upon which $318.21 was then owing which defendant was to pay off, and plaintiffs by this supplemental agreement promised to repay this sum plus any additional interest and insurance, after completing the payments on the property, at the rate of $25 per month.

Subsequently on March 14, 1942, the plaintiffs executed a note for $346.83 payable on September 14, 1943, in one installment. This promissory note was secured by a chattel mortgage on the automobile.

Plaintiffs made fourteen monthly payments of $75 each pursuant to their contract. A dispute arose between plaintiffs and defendant as to whether a portion of these payments should be applied as interest at 6 per cent on the unpaid principal. The evidence was in conflict as to the discussions between the parties concerning interest, but that most favorable to plaintiffs is that nothing was said to them about interest nor was the fact that defendant was claiming the right to interest brought to their attention until about September 11, 1942, when defendant sent plaintiffs a letter show