Burston v. Lake

Callaghan, J.

The agreement sued upon is an original obligation. The maker of the bond, who was not a party to the mortgage, did not as an individual execute the bond for which the mortgage was collateral security. This defendant undertook to pay to this plaintiff the sum of $62,750, which was the principal sum of the mortgage, in installments, as follows: $2,250 on the 1st day of January, 1928, and $2,250 quarterly thereafter on the 1st days of April, July, October, and January of each year, until the 1st day of October, 1930, when the entire unpaid remainder of the principal becomes due and payable. The complaint alleges a default in the installment due on the 1st day of April, 1928, and as a conclusion that the principal sum is now due, and demands judgment for that sum. The agreement sued upon, being a separate, original and independent obligation, must be interpreted and enforced according to its terms. It does not specify that the principal sum shall become due on the default in payment of any installment. The defendant undertook to pay the principal sum of the mortgage, but only as to installments due and unpaid. The agreement can only be enforced according to its terms, and while a motion brought under rule 113 might be granted, if the complaint demanded judgment for the amount due on the first installment, it cannot be granted for. the principal sum of the bond.

Motion denied, with ten dollars costs.