Lewis v. . Nunn

HoKE, J. This cause was before us on a former appeal, and will be found reported in 180 N. C., 159. On questions more directly relevant to the present trial, it was held there: “1. That the mere promise of the mortgagee to extend the time to the mortgagor for the payment of the mortgage note without more has no legal consideration and is unenforceable. *120 “2. Where several notes secured by mortgage are in series, and due at different dates, with, provision that upon default in payment of one, all shall become due and payable with interest, after such default in the payment of the note first becoming 'due, a tender of payment of the note thus due, and interest on all of them in the series, is an insufficient tender.” In this aspect of the matter the evidence pertinent is substantially the same as that offered at the former trial, there being no testimony or claim on the part of defendant that there had even been any tender of the amount of the debt, “but only of the note first due, and the accrued interest on the entire sum.” His Honor correctly ruled that the decision on the former appeal was conclusive, and that in any view of the case the plaintiff was entitled to recover. In his very earnest and forcible argument before us, counsel for appellant insisted that while the agreement for indulgence would not constitute a binding contract for lack of a consideration, it should be considered in reference to the first note a waiver of the stipulation maturing the entire debt under the principles recognized and approved by this Court in Bizzel v. Roberts, 156 N. C., 272. Without intimation that such a position could be maintained on the facts presented in this record, we think it is not open to appellant in view of our decision on the former appeal that a tender of the entire debt was required to stay action on the part of the trustee. That decision on substantially similar facts affords the controlling rule by which the rights of the parties in the present case must be determined, and the recovery by plaintiff must be sustained. In Holland v. R. R., 143 N. C., at page 437, it was said, “That a party who loses in this Court cannot review the decision in a second appeal, as the proper way is by a petition to rehear.” Public Service Co. v. Power Co., 181 N. C., 356. Judgment for plaintiff affirmed. No error.