Walker v. Rockwood

CONREY, P. J.

In this action plaintiff seeks to recover the sum of two thousand and fifteen dollars with interest, being a balance claimed to be due and unpaid on a three thousand dollar note; and also the sum of one thousand five hundred dollars and interest, claimed to be due and unpaid on a one thousand five hundred dollar note. It is alleged that these notes were made and delivered to plaintiff by Peter P. Walker, who died on May 6, 1912, and the defendant became administrator of his estate. It is admitted that the claims were duly presented and were rejected by the administrator prior to the filing of complaint herein. Judgment having been entered for an amount less than that demanded by plaintiff, he appeals from the judgment and from an order denying his motion for a new trial.

The first of these notes was not dated, but was made on August 12,1908. The second note bears date August 12,1909. On the twenty-fifth day of October, 1910, Peter P. Walker paid to plaintiff the sum of $3,985. The court found that no other sum was ever paid; and that at the time of this payment the accrued interest on the notes respectively amounted

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to $528.66 and $144.23; that after applying the payment of $3,985 first to.the satisfaction of the larger note and the remainder on account of the smaller note, there remained due

$1,187.89;

that prior to the commencement of this action the defendant offered to pay said sum of $1,187.89, with interest from October 25, 1910, and that the plaintiff refused said offer, and that (presumably on account of the offer thus made) the plaintiff was not entitled to have interest after the eighth day of August, 1912, which is the date of filing of complaint herein, and is less than a week after the claims had been wholly rejected by the administrator.

Respondent’s counsel admit that the record does not disclose any evidence in support of said finding as to an offer to pay the amount now conceded to have been due, and admit that the judgment should be modified by including the accrued interest for the entire period from October 25, 1910, down to the day of entry of judgment.

In the answer filed by defendant it was alleged that on the twelfth day of August, 1908, Peter P. Walker executed to plaintiff another note for three thousand dollars in like terms as the three thousand dollar note set forth in the complaint, except that this other note so referred to in the" answer was to be without interest until paid. Defendant alleged that the three thousand dollar note sued on was executed several months after and for the sole purpose of taking the place of and canceling the no-interest note and was given for the same and no other consideration. No affirmative relief was demanded by the defendant. No reason appears for the allegations in the answer concerning the no-interest note, unless we may infer that defendant considered it necessary to set up the facts above stated in order to overcome an anticipated claim by plaintiff that three thousand dollars of the money received by him on October 25, 1910, was a payment of the no-interest note.