Fry v. Russell

*Per Curiam: The amount the plaintiff below was allowed to recover was the purchase price of lands sold by him to the defendant below and never paid for. A mortgage had been given for the amount, which it was claimed had been discharged by tender. Its discharge as a lien would have been clear but for the fact that it provided for the payment of an attorney fee in case of proceedings to' foreclosure. Plaintiff at the time of the tender claimed this fee, but afterwards concluded to waive his claim and executed and delivered a discharge. It is not entirely clear upon the face of the mortgage that the fee was not payable in consequence of proceedings which had been taken; but whether that was so or not, the offer of the discharge by plaintiff on receipt of the amount due on the debt was in the nature of an offer of compromise, and when defendant took the discharge, instead of relying upon his tender, saying at the time, he would take his own time to pay in, he thereby recognized the right of the plaintiff to demand and receive from him the amount. We also think this was recoverable under the money counts. Judgment affirmed.