Fausel v. Schabel

The suit is to foreclose a mortgage for $13,000, payable March 1st, 1872, with interest payable quarterly from March 1st, 1869, the date of the mortgage, with the provision that if the interest should not be paid within thirty days after it became due-, then the whole principal should be due. The interest that became due December 1st, 1869, was not paid, and was not tendered until March 2d, 1870. The complainant brought suit after the thirty days and before the tender.

The answer sets up the defence that complainant had agreed to extend the time of payment to March 2d, 1870. No proof of such agreement is made or offered. Proof is offered that complainant, in November, 1869, agreed to go into partnership with Schabel and one Ruh, and to cancel this mortgage as her part of the capital. The weight of evidence is against such agreement. But if it had been proved, it clearly was abandoned; for on the 20th day of *127November, 1869, papers were executed and delivered,, by which Schabel sold to Ruh the premises and brewery in which the business was to be carried on, and was to be employed by Ruh as foreman in the business,- at the compensation of $80 per month and one-fourth of the net profits. Even this arrangement was abandoned before the thirty days expired. The defendants have failed to establish the defence set up in the answer, or any defence, or excuse, for the default in payment. ■ . ....