Wienke v. Smith

Waiver—Pleading—Affirmative Defense.—Waiver is an affirmative defense, and a defendant desiring to take advantage of it must set up in his answer the facts upon which he bases his claim.

Foreclosure of Mortgage—Default in Payment of Installments_ Waiver—Motion for Nonsuit.—In a suit to foreclose a mortgage after default in payment of an installment of principal, the defense of waiver of default, which was not pleaded in the answer, is not available on motion for nonsuit; and where the motion was denied, it must be assumed on appeal that the trial court denied it, as it might properly have done,-for the very reason that the pleadings laid no foundation for .the attempted defense.

Id.—Definition of Waiver—Intent.—Waiver is the intentional relinquishment of a known right after knowledge of the facts, and always rests upon intent. It implies the intentional forbearance to enforce a right, and necessarily, therefore, assumes the existence of an opportunity for choice between the relinquishment and the enforcement of the right.

Id.—Compulsory Acceptance of Payment—Lack of Intent to Waive Default.—Where a promissory note secured by a mortgage was payable in installments and provided that the whole sum might be declared due upon default in payment of an installment, and a collateral agreement between the mortgagors and mortgagees provided that all payments made by parties holding contracts of purchase of the mortgaged property should be turned over to the mortgagees, the receipt by the mortgagees of such payments after default in payment of an installment due on the note cannot be held to have evidenced an intention of the mortgagees to waive default in the payment of the installment of principal, as the receipt of such payments was compulsory, especially where the collateral contract provided that it should not affect the terms of the-mortgage or be any defense in an action of foreclosure, and was to be considered only for the purpose of ascertaining the amount due on the note.

Id.—Acceleration of Payments—Election—Notice.—Where a note and a mortgage securing it provided for the acceleration of the due date of the principal on default in payment of any installment, the payees were not required, as a condition precedent to the institution of suit, to give notice of their election to declare the principal sum due, the commencement of the suit being sufficient notice.

Id.—Attorney’s Fees—Demand.—Where a mortgage provided for counsel fees of five per cent of the debt due, if suit should be brought for the foreclosure of the mortgage, “at any time after default made in the payment of any of said installments,” the liability to pay attorney’s fees arose coincidentally with the right to foreclose, and a prior demand or notice was no more essential with respect to counsel fees than it was with respect to the collection of principal.

Id.—Security for Attorney’s Fees.—Where a mortgage provided specifically that “the mortgagors and mortgaged property are hereby made liable to the mortgagees for such counsel fees,’' the obligation for counsel fees was secured by the mortgage.