Clark v. Wells , 71 Mass. 69 ( 1855 )

Dewey, J.

We have no doubt that upon a proper construction of this bond the plaintiff was bound to show the payment of the sums payable on the 1st of January 1848, and on the 1st of January 1849, at the times they severally fell due; and that a failure to do so would be fatal to his case. The construction contended for by the plaintiff’, that he was at liberty to omit such annual payments, and pay the whole sum due with interest, at any period, however remote, if within nine years of the date of the bond, and, upon such payment, be entitled to a deed, is not sound. The provision of the bond on which he relies is wholly different in its effect and object. It was to secure to the plaintiff the privilege of making the entire payment at an earlier day than on which that he had bound himself to pay it, with a right to have his deed at an earlier day than the expiration of the nine years, if he should elect to anticipate the time of payment. It contains no stipulation for postponement of the payments to be made by the plaintiff.

The evidence offered of an existing account, in favor of the plaintiff against the defendant, equal to the second instalment, was inadmissible, for it did not prove payment of that instalment. Nor would the receipted account between the same parties, to an amount larger than that instalment, furnish any presumption that such account was paid by applying the amount thereof to the payment of the second instalment; but the presumption from the account being receipted generally would seem to be quite the contrary, especially if any effect be given to the fact that the note corresponding to the time of payment of this instalment was not taken up, but is now produced hy the defendant apparently unpaid.

Plaintiff nonsuit.