Brewster v. Boyle

Headnote

1. Default—Opening—Affidavit.

A motion to open a default was denied with leave to renew on further papers. Held, that a subsequent motion would not be granted on an affidavit which failed to outline any defense. .

2. Contract—Purchase of mortgages—Tender—demand.

In consideration of an extension of time within which certain mortgages were to be made payable, defendants agreed in writing to purchase two subsequent mortgages within thirty days. Held, that it was of no consequence whether a demand for the money was made within the thirty days, and the question of tender would only affect the matter of interest.

Appeal from order denying motion to open default and vacate judgment.

Action to enforce contract for the purchase of certain mortgages. A motion to open a default was denied, with leave to renew on further papers. On the second motion the following affidavit was presented:

“ Camille Weidenfeld, being duly sworn, deposes and says that, he is a member of the copartnership of L B. Newcombe & Co., bankers and brokers, doing business at No. 54 Wall street, in the city of New York; that he is one of the defendants in this action and that the summons and complaint were served upon him, to the best of his recollection, upon the 23d day of February, 1892, and he thereupon and on said day delivered the copy so served to his-attorney, Frank Sullivan Smith, with the statement that they had been served as aforesaid. Deponent further says that he has a good and substantial defense to this action, and that the facts upon which such defense is based, and which this defendant will prove at the trial hereof, are these, to wit: That heretofore, and on or about the 10th day of December, 1891, this defendant entered into a contract with the Squires & Whipple Co. for the purchase of the

premises mentioned in the complaint, upon the consideration of the conveyance to said Squires & Whipple Company of a certain house owned by this defendant in Orange, N. J., and his assumption of an indebtedness of $47,000, then stated to be a lien upon said premises and held by the plaintiff; which said indebtedness said plaintiff at that time, and prior to the execution of said contract, agreed, and which agreement was part of the consideration of said contract, that said indebtedness should be secured by mortgage upon said premises (consisting of two lots), as follows: A first mortgage of $20,000 upon each of said lots, and a second mortgage of $4,000 upon one of said lots, and a second mortgage for $3,000 upon the other lot. That said first mortgages were each to mature in three years after the execution of the deed to be delivered, and said second mortgages were to mature one year after Such execution. That relying upon said agreement, and the good faith of the plaintiff in the performance thereof, this defendant thereupon entered into a contract for the sale of said premises to the defendant William Lewis Boyle for the sum of $20,000, and thereafter said Boyle assigned said contract with plaintiff to William W. McFarland ; all of which contracts of sale were made upon the consideration, among other things, of the agreement of the plaintiff regarding the adjustment of the mortgage debt as aforesaid. That upon the 15th day of December, 1891, the date when, under the contract to this defendant, a deed was to be given of the premises in the complaint mentioned, and said William W. McFarland being ready and willing to carry out his part of said contract, the plaintiff sought to relieve himself from his agreement to adjust the mortgage debt as aforesaid, and then and there refused absolutely to make such adjustment, notwithstanding the fact that his undertaking so to do was the moving cause for the execution by this defendant of said contract for purchase; but plaintiff insisted that $7,000 of said principal sum secured by second mortgage as aforesaid should be paid immediately, but agreed that in case this defendant would pay to the plaintiff the sum of $500 he would then carry out his contract, which this defendant refused to do. Deponent further says that having received from said defendant Boyle the sum of $20,000, according to the terms of the contract between these defendants, and said Boyle having assigned his interest in said contract to said McFarland, this deponent, not because he recognized any liability, but for the purpose of avoiding unnecessary delay and embarrassing negotiations, and not with the intent of releasing any of his rights, wrote said plaintiff a letter on said 15th day of December, 1891, copy whereof is hereto annexed, which was also signed by said Boyle. That in and by the terms of said letter these defendants agreed to pay for and take an assignment of the second mortgages, as aforesaid, within thirty days from the date of said letter. Deponent further says that as appears by the complaint herein, and the letter ■of 0. L. Westcott, dated January 29, 1892, * * * no tender of said mortgages or bonds was made to these defendants within said thirty days, and that bv reason of the failure to make such tender deponent is advised that any subsequent ténder is of no

avail, and that he is relieved ■ from whatever liability he might have incurred by writing the letter of December 15, 1891, hereto annexed. Deponent further says that there was no mutuality of engagement growing out of said letter of December 15,1891, and the same is insufficient in law, for the reason, among others, that said letter was without consideration, and fraudulently extorted from these defendants by duress practiced upon them as aforesaid by the plaintiff.

“ Camille Weidenfeld.”