Doyle v. Sanford

Lacey, J. When this case was here on a former appeal the only question presented by either party to the record was whether the appellant, being the purchaser of the mortgaged premises, and having agreed to pay the mortgage debt, could be allowed to claim the benefit of pleading usury. On that appeal the appellant raised by assignment of cross-error, or otherwise, no question of tender, she claiming alone the benefit of the usury statute. The position that appellant took prior to the former appeal on the trial of the case in the court below was that she, as the assignee of the mortgagor, was entitled to a large reduction on account of usury, and insisted on and obtained a decree inconsistent with the. claim of tender by procuring the court to allow her claim of usury. The two claims were inconsistent with each other. The appellant had, as she insists here, made a full tender of the amount of the note and interest at ten per cent, up to the time it was due and stood ready all the time to pay that amount over to the appellees upon their signifying a willingness to accept it. If this claim had been insisted upon all the time and the other claim not set up, there would have been much force in the contention made here for the first time. But after having litigated the matter on an entirely different basis at much expense and delay and having been defeated there is no justice in allowing her now to renew the claim of tendon It should be regarded as having been abandoned. We regard also that the matter is res adjudieata'by this court on the former appeal and the judgment of the court., The remaining order directed the court below to count the interest on the note according to its terms, to the date to be fixed by the decree for its payment, only allowing just credits. This necessarily cut off any claim of tender; for in case of the allowance of tender all interest from the day of tender would have been cut off as well as costs, which were allowed by our order to appellees. It also follows, as a necessary consequence, tha fc the appellees’ claim for attorney’s fees was cut off. By the order remanding the cause only the principal and interest were to he allowed. It also precluded the court from dismissing the hill, in any other manner than as ordered by this court, and that was to fix a day of payment in which time appellant might pay the amount due and costs and on failure so to do the hill stand dismissed. Gage v. Bally, 119 Ill. 539, and eases cited. The decree of the court below, being in conformity with the former opinion and order of this court, is affirmed. Decree affirmed.