Opinion
01-03-1887
SCHMITZ v. SCHEIFELE.
Slape & Stephany, for complainant. S. E. Perry, for defendant.
Bill to foreclose.
Slape & Stephany, for complainant.
S. E. Perry, for defendant.
BIRD, V. C. On the first October, 1883, the defendant gave a bond conditioned for the payment of $7,000, in yearly installments of $1,000 each, until all should be paid, with interest payable semi-annually, to the complainant. The bond contained a condition that, if the interest should not be paid within 30 days after it became due, the whole amount of principal and interest should be forfeited, at the option of the complainant. To secure thisbond he gave a mortgage on lands upon which he had erected a brewery. On the same day, and contemporaneously therewith, the said parties entered into a written agreement, in which the said complainant agreed to take pay for said installments and interest in good and salable lager beer, at the market price. By the same instrument the said defendant agreed not to sell, either directly or indirectly, "to any other person in Egg Harbor City lager beer for bottling purposes but to the said Henry Schmitz, until the whole of the said principal money and interest due upon said bond and mortgage is paid in full." April 1, 1885, there remained due for interest $67.88, which remained unpaid for over 30 days. The complainant elected to take advantage of the legal right secured by the bond, and declared the whole amount due. He filed his bill to foreclose. The defendant answers, and insists that no forfeiture has taken place. He says that the true meaning of the agreement respecting payment in beer is that the defendant will furnish good and salable beer, which he was always ready to do, and which he did, and that it does not require him to furnish beer for bottling purposes; whereas, the complainant insists that, under the agreement, he is entitled to all the beer for bottling purposes that he desires.
In the first place, it has been shown that all beer, when first manufactured, is regarded as fit for bottling purposes, and the difference between beer for bottling and beer for kegs and barrels, and to be sold from kegs and barrels, and not sold from bottles, is that which is to be sold from kegs or barrels is flavored with bicarbonate of soda. It is therefore less expensive and less troublesome for the defendant to furnish beer for bottling purposes. But, if there were any serious difficulties as to the correct interpretation of the agreement, the conduct of the parties under the agreement would aid the court in arriving at a correct interpretation. In cases of doubt, this is a safe rule, and was adopted in Trotter v. Heckscher, 40 N. J. Eq. 612; S. C. 4 Atl. Eep. 83. The proof is that at least five-sixths of the beer delivered to the complainant was beer for bottling. Nor is there any evidence that any question arose between them during the year and one-half that beer was being furnished under the contract, at that rate, or in that proportion, of any disagreement as to the meaning of the contract. Besides, where the court is called upon to decide a disputed point, involving the discharge of an obligation, the court will be justified in presuming that the defendant intended that which is least onerous or expensive to himself. Therefore, the defendant having furnished so large a proportion of the beer, and it so plainly being to his advantage to furnish it, for bottling, I conclude that the defense that the complainant was not entitled to beer for bottling, and that the defendant was always ready to furnish good and salable lager beer, cannot prevail, supposing it to have been established that he furnished, or offered to furnish, good and salable lager beer sufficient in quantity to make the payments due upon the contract.
But there is a fatal defect in the defendant's case, in that he fails to establish a tender of good salable lager beer for the amount due on the first day of April, 1885, or at any time thereafter before the filing of this bill, on May 13, 1885. He says he was able and ready and willing to furnish such beer, and that he instructed his drivers to furnish it; but there is no proof of a proper legal tender of any beer during the time specified. As the case stands before me, I must conclude that the forfeiture contemplated by the parties in the condition of their bond is complete, and that the complainant was justified in filing his bill. I will advise a decree accordingly. The complainant is entitled to costs.