Lynch v. Rinaldo

Per Curiam. The plaintiff utterly failed to show any agreement by the defendant to pay the interest which had, at the time of the conveyance, accrued upon the mortgage. The evidence on that point is the following: Mr. Mudgett, the plaintiff’s agent, swears that “Rinaldo said he could not raise money enough to pay his interest, taxes and assessments, and we agreed to take a note for the taxes and assessments. He was to pay his interest at the time the deed was execnted. The interest was overlooked and none of us thought any thing about it.” [135] On cross-examination he was asked if the defendant, in any conversation with him, actually agreed to pay the accrued interest? A. He did, sir. Q. When was it? A. It was previous to passing the title; after the contract was made; and even after the deed was passed I saw him about it. Q. What did he say ? A. Well, he said he would have to see Mr. Jacobs; Mi*: Itinaldo agreed to pay the interest on that property, also the taxes and assessments. By the Court — You say he promised to pay the interest before the deed was delivered and afterwards ? A. Yes. Q. What did you say to him after the deed was delivered ? A. “ After I discovered the interest had been overlooked I went to Itinaldo and told him we had made a mistake; ” “ well, then,” says he, “ I will have to see Mr. Jacobs about that, and I will call and see him in a few days; you can call to see him ; ” “ Jacobs said he would stand suit.” This is the only evidence of any agreement by defendant outside of his written contract of sale, and the deed delivered in pursuance of it. The contract does not provide for the payment of interest upon the mortgage accruing at the time of the delivery of the deed. There is nothing in the case from which we can infer an implied promise on the part of the defendant to pay such interest. The plaintiff having failed to establish a cause of action the complaint was properly dismissed. Judgment affirmed. Note.— A similar question in regard to an assignment of a leasehold interest came up in Hull agt. Stevenson (13 Abb. [N. S.], 196), wherein it was sought to apportion rent. The New York marine court, trial term,, held, in that case, that accruing rent is not an incumbrance, yet, that the [136] assignee was entitled, upon the principle of subrogation and equitable' apportionment, to be allowed for the rent up to the time of the transfer. The general term of that court (Joaohimseh, Alker and McAdam, JJ.) reversed the trial term, holding that where a person takes an assignment of a lease he enters into the place of the lessee and takes the premises subject to the accruing rent (citing Graves agt. Porter, 11 Barb., 592), and that rent was not a debt or charge until it was due and payable, and that there was no implied covenant to pay rent which had accrued, but was not yet due and payable, where the instrument was silent in that regard, and that there could be no enforced apportionment in such a case. [Ed.