Tompkins v. Tysen , 16 Barb. 456 ( 1853 )

By the Court, Mitchell J.

The evidence showed that the plaintiff gave to the defendant a receipt, dated June 2, 1849, certifying that he held a mortgage of the defendant for $1000, on which he had advanced $500, and which he agreed to assign or satisfy on the payment of the $500 with interest. The mortgage was to the plaintiff, and payable May "29,. 1852,. three years from its date, ft was dated and acknowledged May 29,■ 1849. It was also shown that the defendant sent a written request to the plaintiff, to obtain on the defendant’s account $1000, on the mortgage. This request was the application of the defendant to obtain the loan. The pleadings showed that the plaintiff had advanced to the defendant two sums, one of $200 in May, 1849, and the other of $300 on the 2d of June, 1849; and he sued to recover those sums. The action was commenced in 1849 ; the plaintiff insisting that the loan was payable on the first of July, 1849, and the defendant claiming that it was not payable until the mortgage fell due.

The written application to the plaintiff showed that he was a broker, and was applied to as such, to effect for the defendant a loan of $1000. . According to the frequent course of business in such cases, "where the property is in the country, and the loan is to be effected in the city, the mortgage was executed to the broker, for the whole amount to be raised by loan by him, before any thing was advanced, and although it was not intended that he should be the lender of the money, or the holder of the mortgage, but as the application showed, he was “ to obtain on the defendant’s account $1000 on the mortgage.” When, therefore, the plaintiff lent the two sums of $200 and $300, he did not lend them as mortgagee, and with the intention of waiting until the mortgage should fall due; nor with the intention of lending the rest of the $1000, but he lent them as a broker, who is called upon to effect a loan, frequently does, as a temporary advance to the borrower until it could be ascertained whether the loan of $1000 could be “ obtained?'1 or not. If the application of the defendant to the plaintiff to obtain the loan had not been proved, the character in which the plaintiff was applied to, and the purposes for which he made the advance, might have been uncertain. As it was, all the evidence was consistent, and showed that the loan was a temporary one only. There was no contradictory evidence to justify.the jury in finding for the defendant. The court was therefore right in directing a verdict for the plaintiff.

The receipt, also, of June 2, 1849, favors the plaintiff, as it shows that he was not to advance the whole face of the mortgage, but that he had done all that he was bound to do, in advancing the $500, and that he was to hold the mortgage only as collateral ; as he agreed to assign or satisfy it (not when the mortgage would fall due, but at any time) on the payment of the $500 with interest. :

[New-York General Term, October 3, 1853.

Edmonds, Edwards, Mitchell, Roosevelt and Morris, Justices.]

The evidence offered by the defendant, that since the commencement of the action he had paid the plaintiff the $500 with interest, and that the plaintiff had assigned the mortgage, saving all questions of costs, was properly rejected. It was offered to show the original intention of the parties. It showed no more on that subject than the receipt of June 2, 1849, showed; for it was merely a compliance with that receipt, and the plaintiff, although he had commenced his action, was still bound to comply with the terms of that receipt. No inference could be drawn, therefore, from the assignment. It in fact helped to strengthen the plaintiff’s cáse, by showing that the defendant admitted that the payment by him was to be before the mortgage fell due.

The complaint alleged that the money was to be repaid July 1,1849 ; the answer insisted that it was not payable until May, 1852. The meritorious question was whether the loan Was payable before suit brought. - The evidence made it payable on demand. The variance between the evidence and the complaint did not affect the merits, and was properly disregarded.

The judgment should be affirmed with costs.