Blake v. Moore ( 1890 )

Pratt, J.

The defense depends upon the question of fact whether the maker of the bond and mortgage notified the mortgagee to proceed promptly to collect the amount due. The court below refused to find that such a demand was made. The rule that the findings of a trial court on a question of fact will-not be reversed where there is evidence to sustain it is applied vzith great rigor, and requires that the judgment be affirmed; and, while it may seem that the conclusion reached below upon the facts was.opposed to the weight of evidence, it is plain that a good deal maybe said to support the decision there reached. It is not too much to ask, if a mortgagor seeks to be relieved from the obligation to pay the mortgage debt upon the grounds urged here, that the evidence shall be clear and conclusive beyond a reasonable doubt. The court may well desire that the notice to the mortgagee to enforce the debt should be in writing, in order that the terms may not be open to dispute. If the intention of the mortgagor to resist any personal obligation in case the mortgagee does not proceed promptly is clearly expressed in writing, the court would be able to see that the notice was 'seriously given, and should have been seriously regarded. In the present case the notice is alleged to have been given ata casual meeting on the street, was verbal merely, does not appear to have been repeated or in any way followed up, although one version of the interview seemed to indicate that a further interview would be had. If we endeavor to harmonize the evidence on the theory that each party speaks the truth to the best of his recollection, we should probably believe that at a casual interview some discussion on the subject took place which was not sufficiently clear or definite to impress itself upon the mind of the mortgagee, and which failed to make him understand that he must elect between immediate action to collect the debt on the one hand, and a discharge of the personal obligation of the mortgagor upon the other. Judgment affirmed, with costs. All concur.