Failing v. Clemmer

Beck, J.

The note secured by the mortgage is in the following words:

“$2,100. January 14, 1870.

1. promissory note: interest annually. “Ten years after date I promise to pay to the order of Mary B. Failing, two thousand and one hundred dollars, value received, with interest annually at seven per cent per annum, until paid. Payable at Fort Plaine, Montgomery county, New York.

“A. J. Clemmer.”

The only question presented in the case is whether, under the terms of the note, the interest is payable annually. If the language be so construed, plaintiff is entitled to a decree for interest due; if not, there is nothing due upon the note, and plaintiff’s petition ought to be dismissed.

The language to be construed is plain and scarcely capable of being misunderstood. The contract binds the defendant to pay, ten years after date, the principal named, “with interest annually at seven per cent per annum until paid. ” The rate of interest is fixed by the words “seven per cent per annum.” The time of payment is prescribed by the words “interest annually.” No other construction yill give due force to all of the words used. The language construed in the cases cited by counsel is different from that used in the note before us. The eases, therefore, are not applicable to the question under ■consideration.

The judgment of the Circuit Court is

Affirmed.