Opinion
06-03-1904
HAUSER v. CAPITAL CITY BREWERY CO.
Opinion on motion for rehearing. Motion overruled.
For former opinion, see 57 Atl. 722.
REED, V. C. The insistence is that the court, while denying the right of the complainant to foreclose, overlooked the fact that interest was due at the date of the filing of the bill, for failure to pay which a right to foreclose existed. It is admitted that the foreclosure could only be used for the purpose of collecting the then accrued interest. The bill was riled on May 11, 1903. As already decided, there was an agreement for an extension of time for the payment of all sums due after the application of $10,000 paid on February 26, 1901, on which date the extension agreement was entered into. The indorsement of that payment on the mortgage of November 26, 1901, was on account of interest as well as principal. The interest upon the sums secured by mortgage was extinguished by that payment. It appears that the amount of principal and interest then due and unpaid was, after the payment of the $10,000, regarded as a principal sum, upon which interest accrued from that date at 4 1/2 per cent., or, stated more accurately, the application of that payment was made, as the law would apply it, first to the interest, and the remainder to the principal, leaving only the part of the principal unextinguished by the application still existing. On the basis of a new principal, starting from February 26, 1902, Mr. Lindsay says that, aside from $19,800 of the debt in shape of notes held by the trust company, upon which interest was paid to the trust company, interest was paid to Mr. Hauser upon the rest, being cash advanced for one half year, and tendered it for the next half year or up to February 26, 1903. The acceptance of the first of these payments was an admission of the accuracy of this theory. I am unable to see how it can be said, in the light of this conduct, that there was interest due when the bill was filed. Indeed, this point was not made the ground of the right to foreclose on the trial, but the matter of interest was treated as an incident of the accounting which would follow a right to foreclose.
I think the motion must be overruled.