Mosapp v. Stevens

By the instrument dated January —, 1913, the parties agreed that “the interest of each * * .* in said bond and mortgage is * * *” plaintiff, “ eight hundred dollars and interest thereon from the 16th day of October, 1910,” and defendant $300, with interest from like date, and that “ should there be any loss or expense in the collection of ” the bond and mortgage, “ each shall bear an equal undivided one-half of the amount of such loss or expense. ” As the precise date of the instrument does not appear, we shall assume that it was dated January 1, 1913. The nature of that instrument considered in the light of the circumstances and situation of the parties, should be taken as equivalent to an agreement of dissolution, on which date it is fair to assume that it was the intention of the parties that interest on their respective money contributions should cease. (Johnson v. Hartshorne, 52 N. Y. 173, 177.) The net recovery from the bond and mortgage was $650. On January first plain*875tiff’s contribution to the joint capital, with interest at six per cent from October 6, 1910, amounted to $858, and defendant’s $314.50. Thetotalcapital of the parties was, therefore, $1,073.50. To repay this amount the parties had only $650. Therefore, they had lost $433.50, one-half of which is $311.35. Deducting this amount from the capital share of each produces the following result: Plaintiff’s share of capital, $858; less one-half loss, $311.35, equals $646.75; defendant’s share of capital, $314.50; less one-half, $311.35, equals $3.35. The judgment should be modified so as to award to plaintiff $646.75 from the net proceeds of the bond and mortgage in the hands of the attorneys, and to the defendant from the same $3.35, and as so modified affirmed, without costs to either party. Present—Ingraham, P. J., Laughlin, Scott, Dowling and Hotchkiss, JJ. (Laughlin and Dowling, JJ., dissented.) Judgment modified as directed in opinion, and as so modified affirmed, without costs. Order to be settled on notice.