Opinion
09-09-1889
RUSH v. RUSH, (two cases.)
L. De Witt Taylor, for complainant. J. M. Roseberry, for defendant.
On bill to foreclose.
L. De Witt Taylor, for complainant. J. M. Roseberry, for defendant.
BIRD, V. C. There are two suits to foreclose between these parties. The defense is that, although the debts are due according to the written contract, they nevertheless are not, because of a parol agreement between the parties whereby the complainant promised to extend the time of payment for one year, commencing on the 1st day of April, 1889. I think that, if the usual tests are applied, it will be quite impossible to conclude that the proof shows any agreement to extend the time. In the first place, the mortgagee emphatically denies the allegations of the mortgagor respecting such an agreement. This being so, unless there were strong corroborating circumstances, I would not be warranted by any rule in giving the case to the defendant. Nor, in the second place, does the preponderance of positive testimony support the view that there was such an agreement. It is true that a third party comes in as a witness and swears that he had a conversation with the complainant about money matters, and, during the interview, the complainant told him that he had agreed to let the defendant have these moneys for another year. But this is denied by the complainant, and also by his son, who was present at the time, and who seems to have had every opportunity to hear all that passed. Although he is the son, yet I could discover nothing to induce the belief that he was trying to impose upon the court. Hence, I say that, if the rule as to the preponderance of testimony is regarded, there does not appear to be enough on the part of the defendant to justify me in saying that the testimony of the one, though a stranger to the suit and indifferent between the parties, should overcome the testimony of both the complainant and his son. It is of some importance that when, in May, the complainant called on the defendant and demanded the payment of this mortgage, the defendant asked him what he had done that he should be so treated; but did not remind him of the alleged agreement to extend the time for another year, which, I think, would have been quite natural had he made any such agreement.
But, in case the defendant is right as to the alleged extension, he must still fail because of the inhibition of a positive statute. The statute respecting vice and immorality expressly declares that every such transaction, when entered into on Sunday, shall be void. See Revision, p. 1227, § 1. This act declares that no traveling, worldly employment, or business shall be done on the Christian Sabbath, or first day of the week, commonly called "Sunday." And the supreme court has declared that because of the provisions of the enactment no suitable contract can be entered into on Sunday. Beeves v. Butcher, 31 N. J. Law, "225. And the defendant swears that the contract was concluded on a Sunday. The complainant is entitled to a decree.