Robinson v. Loomis

The opinion of the court was delivered, .by

Strong, J.

The amount of the debt, secured by the mortgage was $21,000. This sum was made payable in the first instance, by instalments falling due at different times, but without interest until they should become due. Then an alternative provision was introduced. It was that the mortgagee or his assigns might sue out a scire facias, and proceed at once for the whole amount remaining unpaid, with 5 per cent, attorney collection fees, w-ithout any further stay, whenever the mortgagor should be in default thirty days in the payment of any instalment or instalments before mentioned, as payable at the time or times appointed. The clear effect of this was to make all unpaid instalments recoverable, the instant default was made in the payment of any one of them, if the default continued thirty days. Upon the happening of the contingency provided for, the time of payment first specified was changed.

It was not merely the instalments, in regard to which there might have been default, that were made presently collectable. The mortgagee was authorized to proceed for the whole debt unpaid, of which each instalment was a part, or, in the language of the proviso, “ for the whole amount at such time remaining unpaid.” We are not at liberty to introduce into the contract the word “ due,” and make it read “ remaining due and unpaid.” The contract draws a plain distinction between instalments due and “ the whole amount unpaid.” The latter refers to the entire debt secured to be paid, the former to some of the parts of it. If it had been intended to provide only for the speedy collection of the instalments in arrears, the appropriate language would have been, “proceed at once thereon for the said instalments.” The change in the language shows that the parties had another subject in contemplation, to wit, the whole debt, which, by default in payment of part, was made presently payable. The court, therefore, correctly refused to affirm the third and fourth points presented by the defendant.

And there was no error in refusing to affirm the fifth. The 5 per cent., stipulated to be recoverable as fees to the attorney for collection, can in no sense be regarded as a penalty. It was an agreed compensation for expenses incurred by the mortgagee in consequence of the default of the mortgagor.

Judgment affirmed.