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agreement was executed, the makers of said notes, as well as the defendant Clark, who was an accommodation indorser of said notes, were insolvent, and that the plaintiffs looked to certain receiver's notes and certificates they held as collateral security for the payment of said notes. The defendants also offered to show that the agreement provided that the defendant Brooks should hold and collect such collateral, and, if said Clark should not pay said $5,000, and interest, before June 23, 1879, then said Brooks should, from the proceeds of such collections, pay the plaintiffs what might be due on said notes; that said Brooks was not able to collect on said certificates and collateral until June 26, 1884, when he paid to the plaintiffs the sum of $5,000, with interest from December 28, 1878, the date of the agreement, and that, at no time after the execution of said agreement and prior to actual recovery upon said notes and certificates, did the plaintiffs make any demand upon either of the defendants for payment of said notes. The court ruled that the defendant Clark, having failed to make the payment of $5,000 within the time fixed by the terms of the contract, was not entitled to the benefits thereof; that the time of payment was the essence of the contract; and that the evidence offered by the defendants to show any other intention or understanding of the parties to the contract was inadmissible; and that the words of the contract were conclusive as to the time. Upon these and other facts, the nature of which appears in the opinion, a decree was entered, ordering the defendant Brooks to pay to the the plaintiffs the sum of $2,067.50, and interest thereon from June 26, 1884, being the balance of the amount appearing to be due upon said notes of $2,500 and $3,000, respectively, over and above the sum formerly paid by said Brooks to the plaintiffs. To this decree, and the rulings and findings of the court, the defendants alleged exceptions.
Brooks & Nichols, for defendants.
The questions arising are: (1) Is time of the essence of the contract, so that the defendant Clark, having failed to make payment of the sum of $5,000 on the date limited in the contract, forfeited all rights to the benefit of the contract? (2) Was it not open to the defendant to show by the evidence offered the circumstances under which the contract was made; its purpose and inducement; the reason or excuse for Clark's not making the payment on the day named; and the conduct of the parties to the contract, and what was done under it? (3) Were not the facts which the defendant offered to prove sufficient, if proved, to warrant a court of equity to relieve the defendant against forfeiture of the benefits of the contract, by reason of his failure to make the payment within the exact time limited? (4) If time was originally of the essence, did it continue so? and was there any waiver by conduct of the parties or otherwise? As to the first question see GRAY, J., in Barnard v. Lee, 97 Mass. 92, 94; Hipwell v. Knight, per Baron ALDERSON, 1 Younge & C. 415; Davis S. M. Co. v. Stone, 131 Mass. 384; Mechanics' Bank v. Lynn, 1 Pet. 376; Seton v. Slade, 7 Ves. 265, 273. It is submitted that the case at bar is within the principle stated in Seton v. Slade, ubi supra. The doctrine that in equity time is not of the essence of a contract "applies with special force, and will always be applied," except in special cases, "to promises to pay money." A default in the payment at the day appointed, unless the delay be from such a cause, or be continued so unreasonably long as to be a ground for rescission, will always be relieved. Pom. Spec. Perf. § 374; also, §§ 335, 392. See Steele v. Branch, 40 Cal. 3; D'Arras v. Keyser, 26 Pa. St. 249; Edgerton v. Peckham, 11 Paige, 352, 361; Ex parte Hulse, L. R. 8 Ch. 1022; Decamp v. Feay, 5 Serg. & R. 323, 326; Vyse v. Foster, L. R. 7 H. L. 318, 342; Vernon v. Stephens, 2 P. Wms. 66. The present case is within the principle of forfeitures for the non-payment of money at a certain day, against which, it is well settled, equity always relieves. Pom. Spec. Perf. § 335; Sanborn v. Woodman, 5 Cush. 36; Rose v. Rose, 1 Amb. 331. The evidence offered should have been admitted. Parol evidence is admissible to
show whether time was intended to be of the essence of the contract. Scarlett v. Stein, 40 Md. 512; Austin v. Wacks, 30 Minn. 335, 342; S. C. 15 N. W. Rep. 409; Thurston v. Arnold, 43 Iowa, 43; King v. Ruckman, 21 N. J. Eq. 599, 604; Grigg v. Landis, 21 N. J. Eq. 494; Levy v. Lindo, 3 Mer. 81, 84. Every where time is expressed as of the essence of the contract, it is not conclusive. 3 Pars. Cont. 340. "The question whether time is to be deemed of the essence of the contract depends upon all the circumstances of the case.' Barnard v. Lee, 97 Mass. 92, 94; Davis S. M. Co. v. Stone, 131 Mass. 384. See Mechanics' Bank v. Lynn, 1 Pet. 376; Pom. Spec. Perf. 392, and cases in note; Remington v. Irwin, 14 Pa. St. 143; Parkin v. Thorold, 16 Beav. 59, 65; Roberts v. Berry, 3 De G., M. & G. 284, 292; Hearne v. Tenant, 13 Ves. 287; Pom. Spec. Perf. §§ 418, 420, 424.
J. H. Benton, Jr., for plaintiffs.
The written agreement between Clark and the plaintiffs gave Clark an option to pay a debt of $6,906.41, with interest, by a payment of $5,000, and interest, on or before June 23, 1879. The offer of the defendants to show that it was not the understanding or intention of the parties that Clark should have the benefit of this option only by taking advantage of it within the time to which it was limited, was simply an offer to control the plain terms of the written contract, and to read into it, by parol, a different agreement from that which its terms clearly import, and the evidence was properly excluded. The silence of the plaintiffs, and the fact that they kept themselves informed as to the progress of the suit upon the collateral, did not amount in law to a waiver of the terms of the agreement, or extend the time, within which Clark might exercise the option given him by it. This is not a case of an agreement to convey something of fixed and unchanging value on or before a certain day, in which class of cases the time mentioned is not in equity necessarily of the essence of the agreement, but is simply a case where it is agreed that if one party pays a less sum than the amount due within a given time, the other party will release the debt; and in such cases time is necessarily of the essence of the contract. Howe v. Conley, 16 Gray, 552; Goldsmith v. Guild, 10 Allen, 239; Barnard v. Lee, 97 Mass. 92.
W. ALLEN, J. By the agreement to which the defendant Brooks was not a party, certain securities were to be placed in his hands for collection. If $5,000, with interest, should be paid by the defendant Clark to the plaintiffs, on or before a certain day, the plaintiffs should assign to Clark all their rights and interest in the securities, and Brooks should hold the securities for Clark, and all sums collected on them should belong to him. If Clark should not pay $5,000 to the plaintiffs, on or before the day named, Brooks should apply the sums collected on the securities to the payment of the amount due upon certain notes held by the plaintiffs, on which Clark's name appeared as an indorser, and should account to Clark for the surplus. The plaintiffs also covenanted that, if the $5,000 was paid to them on or before the day named, they would not sue Clark upon the notes.
The intention of the parties, as expressed in the agreement, is plain. Time was of the essence of the contract. The trust upon which the securities were to be held was made to depend upon the fact of the payment or non-payment of the money, within the time fixed. If it was paid as provided, they were to be held for Clark; if not, they were to be held to pay the notes to the plaintiffs. There was no other trust for the plaintiffs. The payment of the money as provided was the condition upon which the trust for Clark (except as to the surplus after the full payment of the notes) was to arise, and upon which the covenant not to sue was to become operative. Parol evidence is not competent to vary this plainly expressed intention of the parties.
The plaintiffs did not lose their rights to have the moneys which were collected upon the securities applied in payment of the notes by not demanding
payment of Clark, or bringing suit against him upon the notes. They had a right to wait until the trustee had received moneys which he could apply on the notes. The explanation afforded by the offered evidence that they knew of the progress of the collections upon the securities, and that Clark and the makers of the notes were insolvent, and that the plaintiffs expected that payment would be made from the moneys received from the securities, is not necessary for the preservation of their rights against the trustee. Exceptions overruled. Decree affirmed.
(143 Mass. 380)
JACKMAN v. CITY OF GLOUCESTER.
(Supreme Judicial Court of Massachusetts. Essex. January 10, 1887.) MECHANIC'S LIEN-ACCOUNT-JURAT ATTACHED TO-SIGNATURE.
A justice, in signing a jurat, under Pub. St. Mass. c. 191, 6, providing that the statement of account of one claiming a mechanic's lien shall be subscribed and sworn to, need not add to his signature the title of his office. The jurat may be amended, or his authority may be shown by evidence if the court does not take judicial cognizance of it.
Petition to enforce a mechanic's lien. At the trial in the superior court, before PITMAN, J., several issues of fact were submitted to the jury, the first of which was as follows: "Was the certificate of lien filed within thirty days after Jackman ceased to labor or furnish labor on the buildings?" To prove the affirmative the petitioner introduced as evidence a certified copy of document on file in the registry of deeds purporting to be such certificate of lien; but the certificate of the oath of the petitioner on said certificate was as follows:
"State of Massachusetts, Essex-ss.: GLOUCESTER, July 13, 1885. Then personally appeared the above-named Eli Jackman, and made oath that the statement above subscribed by him is true, before me.
"WILLIAM A. PEW, JR."
To the admission of this document the respondent objected, because it did not show that the oath was administered by any magistrate or person legally authorized to administer oaths. The petitioner then offered to prove that said William A. Pew, Jr., was, at the date of the execution of said certificate, a justice of the peace for said county. To this the respondent objected, but, upon being overruled by the court, admitted that said William A. Pew, Jr., was, at the time of making said certificate, a justice of the peace for said county. The jury then found that the certificate was filed within 30 days after he ceased to labor on said building; and on the whole case the court found a lien established. To the rulings of the court the respondent alleged exceptions.
N. J. McNeirny, for respondent.
The statement filed in the registry of deeds pursuant to Pub. St. c. 191, § 6, was insufficient, in that it does not appear to have been sworn to. The provision is mandatory, and therefore requires strict compliance with its terms. Kelly v. Laws, 109 Mass. 396; Tinsley v. Boykin, 46 Tex. 592. Nor does the statute permit a copy to suffice. The original instrument itself must be filed, and remain in the custody of the register. Pub. St. c. 191, § 7. See Id. § 8. Previous to the enactment of section 8, a slight inaccuracy as to the amount claimed was held fatal. Lynch v. Cronan, 6 Gray, 532; Lewin v. Whittenton Mills, 13 Gray, 101. The capacity in which W. A. Pew, Jr., acted, cannot now be shown by parol testimony. Lincoln v. Crandell, 21 Wend. 101; Davis v. Alvord, 94 U. S. 549. It is said that evidence of the official character of the certifying officer is not required unless required in the statute. Secrist v. Green, 3 Wall. 751; Carpenter v. Dexter, 8 Wall. 513. But this means that no affirmative evidence is necessary to show that the offi
cial certifying is actually such official as the certificate claims. The cases do not decide that the certificate, or the document to which it is attached, shall in no manner disclose the official character of the person certifying. See Greenawalt v. Kohne, 85 Pa. St. 371. Parties interested should find in the statement and the certificate of oath all the information to which the statute entitles them, without the necessity of inquiry elsewhere. W. A. Pew, Jr., for petitioner.
The fact that the magistrate before whom the oath accompanying the certificate required to establish a mechanic's lien was taken, does not affix his official title to his name, is not fatal if, at the time of administering the oath, he was a magistrate duly qualified so to act, and did at the same time act in his official capacity. The last two facts may be established by proof aliunde. The same rule applies to the certificate accompanying an affidavit, deposition, or the acknowledgment of a deed. Bennet v. Paine, 7 Watts, 334; Berks Co. Com'rs v. Ross, 3 Bin. 539; Hunter v. Le Conte, 6 Cow. 728; People v. Rensselaer, 6 Wend. 543. A magistrate cannot divest himself of his judicial capacity to administer an oath while his commission is in force, and therefore, whenever he administers an oath, it shall be taken to have been done officially. Berks Co. Com'rs v. Ross, supra.
FIELD, J. Pub. St. c. 191, § 6, provides that the statement of the just and true account which the person claiming a lien must file in the registry of deeds "shall be subscribed and sworn to by the person claiming the lien, or by some one in his behalf." The statement filed by the petitioner was subscribed by him, and sworn to before a justice of the peace, and a certificate of the oath was attached to the statement by the justice, who subscribed his name, but did not add the title of his office. We think that this omission did not render the filing of the statement void, and that the fact that the person by whom the oath was administered was authorized to administer it may be proved by evidence. There is nothing in the statute that in terms requires any certificate of the oath, although the statute construed with reference to well-known usages undoubtedly implies that the statement shall have a jurat attached. Affidavits and depositions lawfully taken by a person authorized to take them are not to be treated as uns worn statements because the magistrate has not added to the certificate signed by him the name of his office. Courts permit the certificate to be amended, or, without an amendment, admit evidence of the authority of the person by whom they were taken, if they do not take judicial notice of it. In this case, if the statement appeared on its face to have been sworn to, we think that it could be filed; and if, in fact, it was sworn to before a person authorized to administer an oath, we think that there was a compliance with the statute. See Hitchings v. Ellis, 1 Allen, 475; Hunter v. Le Conte, 6 Cow. 728; People v. Rensselaer, 6 Wend. 543; McKinney v. Wilson, 133 Mass. 131. Exceptions overruled.
(143 Mass. 376)
WASHBURN v. TISDALE, Assignee.
(Supreme Judicial Court of Massachusetts. Bristol. January 10, 1887.) INSOLVENCY-SALE OF ESTATE UNDER FIRST MORTGAGE-PROOF OF CLAIM BY SECOND MORTGAGEE.
Where real estate of an insolvent, subject to two power of sale mortgages has been sold under the power contained in the first mortgage, and the holder of the first mortgage has accounted with the holder of the second mortgage, and delivered to her the balance after settlement of his own claim, the holder of the second mortgage is entitled to prove the balance of her claim against the insolvent estate. Pub. St. Mass. c. 157, 28, providing a method for proof of claims by creditors having "a mortgage or pledge of real or personal estate of the debtor, or a lien thereon," does not apply to such a case.
This was an appeal by the defendant, who was assignee of the estate of Duncan S. Elliot in insolvency, from the allowance by the insolvency court of the claim of the plaintiff against the said insolvent estate.
At the trial in the superior court, before THOMPSON, J., the following facts appeared: On July 16, 1868, said Elliot, the insolvent, gave a mortgage of his real estate to the Bristol County Savings Bank, at Taunton, to secure his promissory note of even date for $1,700, containing the usual power of sale. On July 8, 1869, said Elliot gave a second mortgage of the same real estate to one Charlotte A. Washburn, the plaintiff, to secure her note of even date for $1,300, also containing the power of sale clause, and in the clause against incumbrances excepted the prior mortgage to said bank. February 20, 1885, a petition was filed in the insolvency court to have said Elliot declared an insolvent debtor, by one Hiram B. Aylsworth, one of his creditors, and the first publication of notice was February 21, 1885. March 18, 1885, he was adjudged insolvent, and a warrant issued, and on April 10, 1885, the first meeting of the creditors was held, and Edward Tisdale was duly chosen assignee, and an assignment was duly made to him. The bank never proved its claim in the insolvency court, but, proceeding under the power of sale, published, according to law, in a daily paper, a notice of the foreclosure of the mortgage, and that the property would be sold at a date named, October 5, 1885. This notice was addressed to said Elliot and Washburn, and all other persons interested in the premises. No notice was given to the assignee or to said Washburn by the bank other than the published notice, and defendant never knew of the sale until afterwards. The bank sold the property, under its power, for the sum of $2,150. Mrs. Washburn was present at the sale, by her agent, and there is no question made but what the property brought its fair market value.
The mortgage to the bank contained this clause in the power of sale: "Rendering the surplus of the purchase money, if any there be, over and above the said sum and interest, together with a true and particular account of said sale and charges, to the said Elliot, the grantor, his heirs, executors, administrators, or assigns." No account of the sale, or the proceeds or payment of the proceeds, was ever given to the assignee by any one until the presentation of the proof by said Washburn. The bank accounted with Washburn, and, after deducting its claim, paid to her the balance, $337.43. This amount she indorsed upon her note, October 20, 1885. After payment of this amount to her, she presented her claim for the balance due on the note to the court of insolvency, which was allowed at an adjourned third meeting, February 12, 1886.
The defendant asked the court to rule, as matter of law on the facts in evidence, that plaintiff was not entitled to have her claim allowed. The court so ruled, found for the defendant, and the plaintiff alleged exceptions. Braley & Swift, for defendant.
At the time of the first publication of notice the plaintiff was a secured creditor of one Elliott, and her rights are to be fixed as of that date. Pub. St. Mass. c. 157, § 26; Spurr v. Dean, 139 Mass. 84, 86. She could not prove her claim at the first meeting because of her security, (Pub. St. c. 157, § 28,) and the statute must be strictly followed, (Smith v. Warner, 133 Mass. 71, 73.) The fact that there was a prior mortgage on the same property made no difference as to the method of procedure. If the first mortgagee did not come into the court of insolvency, and proceeded in such a way as not to allow the plaintiff an opportunity so to do, this court, in equity, could enjoin the sale until the plaintiff could make such application as is required by law, (Barnard v. Eaton, 2 Cush. 294; Hunnewell v. Goodrich, 3 Cush. 469, 471;) and could work out all the equities involved, if necessary. The fact that the plaintiff was the second mortgagee made no difference. She could petition for a sale, and only the equity of redemption mortgaged to her would be sold.