Johnstone v. Mulcahy

THE COURT.

—Suit by vendee of real property in possession, against the vendor, for accounting and for specific performance. The judgment was, that there was due on the contract the sum of $3,869.54, and that, on default of payment for thirty days, plaintiff should be foreclosed of his interest, and defendant have restitution of the premises. It is claimed by the appellant that the amount adjudged against him was excessive; and this is the only point that need be considered.

The contract of sale was in the form of a lease and accompanying agreement of date May 17, 1878. The lease provided for the payment of seventy-two monthly installments of $45.07 each, amounting to $3,245.04; and the agreement—as written —was for a conveyance, upon the payment of these installments, and of a promissory note of $1,350, payable nine years from date, with interest at nine per cent per annum, compounding semi-annually. Fifty-two of the monthly installments (it is found) were paid,—amounting to $2,343.64,—and on the promissory note the sum of $3,125; and it is found, generally, that “the amount owing at the time of the commencement of this suit from plaintiff to defendant, over and above all payments made by plaintiff to defendant on account thereof, together with interest on all such payments at the rate of seven per cent per annum, is . . . $3,869.54.” The points made by the appellant are: 1. That the remaining monthly installments (twenty in number) were also paid; 2.' That a larger amount was paid on the promissory note than is credited; and 3. That the balance due at the commencement of the suit was much less than found.

1. With regard to the first point, we think the payment of the twenty installments found to be unpaid is very clearly established by the evidence. The absence of receipts is accounted for by the fact that the plaintiff was in the habit of making payments without taking receipts. He testifies that in 1887,

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at a settlement between him and the defendant, the amount found to be due on the note was about two thousand eight hundred dollars, and that it was agreed that there was two hundred dollars more due for money paid by the defendant for taxes, etc. This statement is not denied by the defendant, but is apparently admitted. The amount stated to be due (two thousand eight hundred dollars) is about the amount that would have been due on the note, calculated with compound interest, subject to two payments shown by receipts of date December 1,1878, and June 30, 1879.