Saghbazarian v. Cohen

Bugg, C.J. This suit in equity is brought to restrain the foreclosure of a construction mortgage. The case was sent to a master. The plaintiff’s exceptions to his report were overruled and the report was confirmed, and a final decree was entered dismissing the bill. The mortgage and note thereby secured were to run for a term of four months from August 21, 1929. The underlying controversy between the parties was whether the defendant had granted for consideration an extension of time for the payment of the amount due under the mortgage. As bearing upon that point, the plaintiff offered in evidence a receipt dated February 3, 1930, acknowledging the payment of $92.50 in way of interest “till Feb. 21, 1930 — one month.” The master found that this receipt and acceptance of interest after the date of the maturity of the note were not an extension of the note under the terms of the agreement. The evidence is not reported and hence the findings of fact of the master must be accepted as true. [251] It is established that ordinarily a receipt is open to explanation and that its written terms are not conclusive upon the parties. There are no findings which require the conclusion that this receipt in the circumstances disclosed was an agreement to extend the mortgage and the note thereby secured. Interlocutory decree affirmed and final decree affirmed with costs.