Budweiser Brewing Co. v. Capparelli

McCarthy, J. This is an appeal from a judgment entered December 19, 1895, on verdict of jury, by direction of the court, . for $2,148.23 damages and costs, and from an order dated saíne day denying a motion for a new trial. [503] The complaint is on a promissory note made by the defendants for the sum of two thousand dollars ($2,000), upon which they had paid the sum of $100 on account thereof. The answer admitted the making of the note and the payment on account. It denied that payment of the note had ever been demanded. As a separate defense, it alleged that defendants borrowed $2,000 from the plaintiff, for which sum the note was given, and that as collateral security therefor they gave plaintiff a chattel mortgage on certain chattels and fixtures. The answer then alleged fraud in the foreclosure of said mortgage by the plaintiff. On the trial the defendant offered the mortgage in evidence. Plaintiff put the note in evidence, which was received without objection, and when the plaintiff rested no motion was made to dismiss. No demand for the, payment of the note in question was necessary to fix the liability of the maker. The effect of an omission or failure to make such presentation was not to exonerate the maker from his promise to pay what he agreed, but only to relieve him from damages in case he was ready at the time" and place appointed to pay it, and that there was no one there to receive the money. Such readiness is considered equivalent to a tender of the sum payable, and an answer pleading that fact, and a payment of the money due into court, would be a bar to a recovery of the interest and costs, but not to the cause of action. Hills v. Place, 48 N. Y. 520, 522-523; Davies v. N. Y. Concert Co., 41 Hun, 496. The defendant does not plead, claim or offer to prove these facts. But assuming that the defendants, had the money ready at the place and time designated', this would not relieve them, since they have not shown that the money was ever brought into court. Nor was it necessary to make a demand before foreclosing the chattel mortgage, since the conditions of the chattel mortgage are absolute. It provides that upon the payment of a certain promissory note, bearing even date with the said mortgage, made by the defendants to the order of the plaintiff for $2,000, with interest, and for the further securing the payment of the note the mortgage is given. If the same is paid, then the mortgage shall be null and void, otherwise to remain in full force and effect. It also provides that in case default be made in the payment of the said sum above mentioned, or any part thereof, it shall and may be lawful for the plaintiff, and the defendants authorize the plaintiff, to sell and dispose of [504] ■the property described in said mortgage for the best price they can ■obtain, without notice. “ If, from any cause, said property should fail to satisfy said debt, interest and costs and charges, the said defendants agree to pay the deficiency. It is further covenanted ■ that judgment may be forthwith entered against defendants for «aid deficiency, without further notice, and do hereby stipulate to be bound by the result of stich sales as shall be made in accordance herewith.”.. • The only defense then left was one of fraud in the sale of the •mortgaged property, but the defendants failed to show any fraud. . His offer to prove failure of demand for satisfaction of chattel mortgage, or notice of foreclosure of same, did not embrace this ■defense, and the trial justice, therefore, was correct in his rulings., Judgment is, therefore, affirmed, with costs. Van Wyck, Oh. J., concurs. Judgment affirmed, with costs.