Dodge v. Avery

WORKS, J.,

pro

tem.

The defendant and one Ira L. Brunk entered into a written agreement in which it was recited that the former, the party of the first part, was indebted to Brunk, the party of the second part, in the sum of one thousand two hundred dollars. The agreement then provided: “In order to secure the . . . payment of said sum of money, the first party hereby sells, assigns, and sets over to the second party ... an interest in and to that . . . lease made and executed ... by and between the first party . . . and John B. Strickler . . . wherein the said Striokler becomes obligated to pay . . . the sum of nine thousand dollars

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as rent for a certain property, . . . and the first party herein assigns, sells, and sets over to the second party ... an interest in and to said rents due and to become due . . . under and by virtue of said indenture of lease to the amount of one thousand two hundred dollars, with the understanding that the second party herein shall collect from the lessee . . . the said nine thousand dollars of rent, payable in monthly installments of $150 per month, and shall retain for his own use and benefit, the sum of twenty dollars out of each monthly installment of rent, the said twenty dollars to be applied upon the said sum of one thousand two hundred dollars until the whole of said one thousand two hundred dollars is fully paid.”

The rights of Brunk under this agreement descended to the plaintiff through a chain of several assignments, all of which were accepted by the defendant, and the present action was commenced to recover for an alleged breach of its terms. Let us say at the outset that, while the agreement and the assignments of it may possibly be construed as vesting in the plaintiff the right to maintain an action against the defendant upon the original obligation of the latter to pay Brunk one thousand two hundred dollars; that question does not arise in this action, for the complaint is plainly based upon the agreement as one which lodged in the plaintiff the right to collect the rents and to retain from each monthly collection the sum of twenty dollars until the payment of the full one thousand two hundred dollars was accomplished.

After setting up the agreement and the assignments, the complaint alleges that $180 had been collected on the agreement at the monthly rate of twenty dollars before the assignment to the plaintiff, and that, after that assignment, she collected twenty dollars monthly for a period of twenty-three months, up to and including April 1, 1914, or an added sum of $460. Then occur the following allegations, omitting formal verbiage: “That thereafter, plaintiff continued to try to collect the rent, . . . but was unable to do so, by reason of the fact . . . that the defendant herein began to interfere with the collection of said rents by this plaintiff, by endeavoring to collect the rents himself, and . . . forbidding the tenant in possession ... to pay to the plaintiff, any of the rents, . . . and demanding the payment of said rents to himself. . . . That by reason of said interference, this plaintiff