Opinion
January Term, 1901.
Judgment of the Municipal Court affirmed, with costs.
At the settlement of a contract for the exchange of real estate between the parties, a statement of account was made up showing the method of settlement. The equity of the plaintiffs in their premises was $2,171.14 less than the equity of the defendant in her premises. This difference was paid by the plaintiffs to the defendant in two notes of $500 each, $600 in a certified check and $557.79 in cash, together with some taxes. The statement contains the stated amount of the interest on the plaintiffs' mortgages which, though earned, was not then due, the day of payment not having arrived. It was thereupon allowed to the defendant as an incumbrance on the property, in addition to the principal of the mortgages. It is true that she took the conveyance of the plaintiffs' premises subject to the mortgages, and did not assume and covenant to pay them. The result, however, is tantamount to the payment of that sum in cash to her. This is not an attempt to vary the terms of the written contract between the parties. The action is based upon the defendant's actual receipt of money greater in amount than she would have received if there had been no interest earned. The plaintiffs actually paid the defendant in check and cash $1,171. This payment was a consideration for an implied promise by the defendant to pay the interest when it became due. By the non-payment the plaintiffs have been compelled to pay the interest and may maintain this action which is for the recovery of the amount. The judgment should be affirmed. All concurred.