Weisl v. James , 120 N.Y.S. 47 ( 1909 )

GIEGERICH, J.

It is impossible to determine what the plaintiff’s claim is in this case. According to the mortgage sought to be foreclosed, the defendant was to pay the sum of $640.16 by paying $50 on the signing of the mortgage and the balance in installments of $3 on the 1st, 8th, 15th, and 22d of each month. The schedule contained in the mortgage also shows what goods were covered by it. In the affidavit on which the warrant of attachment was obtained, it is stated that the full amount of $640.16 was due the plaintiff on September 24, 1908, which was the date of the mortgage. It also appears from the proceedings upon the trial that the plaintiff’s claim was that all goods mentioned in the schedule had been delivered to the defendant. On the margin of the mortgage are written certain provisions for the withdrawal by the defendant of so-called “additional” quantities of goods of specified values on paying specified sums down and additional installment payments. The incomprehensible feature of the case is found in the fafct that the amounts of such withdrawals so provided for aggregate exactly the sum of $640.14 mentioned in the mortgage, while the final installment payments called for by such provisions for additional withdrawals would amount to $15, instead of the $3 mentioned in the body of the mortgage. The matter is still further confused by the fact that the plaintiff does not even now claim that installments at the rate of $15 should have been paid, but only at the rate of $6. The meaning of the agreement is not made easier to ascertain by the fact that the plaintiff accepted) installments for a considerable time at the rate of $3 without any claim that more was due.

If the mortgage as drawn fails to express the intention of the parties, it should be reformed in some tribunal having "jurisdiction to grant such relief. If it correctly expresses such intention, then clearer evidence should be presented to the court on which an intelligent conclusion can be reached.

Judgment reversed and new trial ordered, with costs to the appellant to abide the event.

GOFF, J., concurs.