Hicks v. Shouse , 56 Ky. 483 ( 1856 )

Chief justice Crenshaw

delivered the opinion of the court:

Shouse instituted suit in the Fayette circuit court ¿gainst Hicks, upon the following obligation :

“ Í have this day purchased a negro named John, belonging to Mrs James McKinney, under two decrees of the Fayette circuit court against her, in the names of Shouse & Smith, and James H. Shouse & 6o„ for which negro 1 promise to pay Jas. H. Shouse, who is the owner of said decrees, the sum of $500:; and I promise to pay said money so soon as I sell a house and lot in the city of .Lexington, bought of C. J. Sanders and wife; and, until said sale is made I promise to pay eight per cent, interest per annum on said sum. November 29, 1848.

Beverly A. Hicks.”

Teste : George B. Kinkead.”

This obligation has credits for interest, indorsed thereon, up to the 29th day of November, 1855 ; and the suit thereon was instituted on the 21st day of July, 1856, which was more than seven years after the obligation was executed.

The petition alledges, in substance, that at the date oí the obligation, it was the understanding of the parties, that Hicks was anxious to sell said house and lot, and would, within a reasonable time, sell the same and pay to the plaintiff said sum of money; that said house and lot had not been sold, although it could have been sold within the time which had elapsed, if Hicks had, in good faith, desired to pay the said debt; that Hicks had been frequently requested to make said sale and pay said debt, and he had refused, because he was unwilling to sell unless he could do so at a price, above the market value.

The, defendant answers that he had been anxious to make sale, of his house and lot from the time of the execution of said obligation, and that it had been in market ever since; that the property cost him over $4,000, and that it had, for the last five or six years, been offered for $3,600. and that he had spoken to several persons to aid him in the sale at that price, offering a commission or compensation of $100 for selling at that price; that it had been valued by the city assessors above that price, until the last assessment, when it had been valued at $3,-500 ; that he had never had |but two offers for the property — one on a credit which did not suit him, and the other was an offer to exchange land for said house and lot, which he did not wish to make; that he does not know the market value of his property, or whether it has any market value ; that the price which he had asked was a moderate one, not exceeding its true value, &c.

1. An obligation was to pay $5110 “so soon as 1 soli my bouse and lot in the city of Lexington, and until Baitl sale is made I promise to pay eight per cent, interest on said sum.” field that the $500 xvasduc in a reasonable time, and seven years, which was the time in thia ca-e before suit, was long enough for the payee to wait. 2. Interest was edited on the obligation lor 7 years. It not appearing at what rate it was computed, the e’rt should not, in the absence of proof, presume that it was at Ü per cent., and order a credit on the note for the excess over 6 per cent.

' The above are the material statements of the plaintiff and defendant, and upon them the cause was submitted to the court for decision, and judgment was rendered for the plaintiff for the sum of $500, with interest from the 29th day of November, 1855, the interest having been paid, as appeared by indorsements upon the obligation, up to that time.

It is insisted that the court erred in giving judgment for the plaintiff at all; and that, even if the court were right in giving judgment for the plaintiff, the defendant should have been credited with the excess of interest which had been paid above six per cent. In reference to this credit which is claimed, we remark that, in the first place, vve are asked to assume that interest at the rate of eight per cent, had been paid up to the 29th of November, 1855, because the obligation stipulated for that rate of interest. But., even if it were conceded, which we do not do, that this assumption would be proper, we are of opinion that the court did not err in failing to give the credit, inasmuch as usury was not relied upon by the defendant, nor the credit claimed by him in his answer.

The main question, however, is, was judgment against the defendant authorized for any amount? We think it was, and that the judgment is for the proper amount.

A reasonable construction should be given to the covenant — the intention of the parties should be effectuated, if practicable, and their understanding carried out. Such a construction, as we think, results in the conclusion that the house and lot was to be sold in a reasonable time, or the money be paid without a sale. The argument of defendant’s counsel would, as it seems to us, lead to an absurdity, and would do violence to all -reasonable calculation as to the intention of the parties. It leads to the conclusion that the defendant, by paying eight per cent, interest annually, might postpone the payment of the debt to an indefinite period.

As we understand the covenant, construing it according to its reason and spirit, the plaintiff was willing, and intended, that the defendant, by paying an annual interest of eight per cent., might have a reasonable time to make sale of his house and lot — not that he might sell when he pleased, and pay when he pleased. A reasonable time has elapsed for the sale, and it has not been made; and it is not stated by the defendant that he could not sell, but only that he could not sell at what he esteemed a reasonable and fair value for the property. It could have been sold at its market value at any time, and the contrary is-not even intimated. If the defendant thought proper not to sell for the market value, he ought, after the. lapse of a reasonable time for a sale at his own price, and his failure to sell, to pay the money.

Judgment affirmed.