DOE d. HINDLE v. ROE. Erch. of Pleas, 1838. tenants, lessees ing houses, served with a mises unoccu JAMES moved for judgment against the casual ejector. Where there There were four tenants, lessees of four adjoining houses, were four Nos. 1 to 4 in a row; three of them had been served per- of four adjoinsonally, but it appeared that the fourth had left the pre- three of whom mises, and it was not known what had become of him. were personally The declaration had been affixed on the door of the house, declaration in ejectment, but The Court thought, that, as to this party, the landlord the fourth havshould have proceeded as upon a vacant possession; but ing left the preDoe d. Osbaldiston v. Roe (a) being referred to, a rule pied, the declanisi was granted, to be served in the same manner as the ed to the door of declaration; and the Court desired that the case should Court granted a be mentioned again before it was made absolute. On a subsequent day, the matter was accordingly men- against the tioned again, and on an affidavit of service in the manner before mentioned, the rule was made absolute as to all the tenants, on the authority of the above case. (a) 1 Dowl. P C. 456. But see Doe d. Lord Darlington v. Cock, 4 B. & C. 259; Doe d. Showell v. Roe, 2 C. M. & R. 42; Doe d. Rule absolute. ration was affix his house-the rule nisi for judgment casual ejector, to be served in as the d the same way as the declaration, and afterwards made the rule absolute on an affidavit of Norman v. Roe, 2 Dowl. P. C. such service. HARDING V. Ambler. ASSUMPSIT to recover the balance of certain interest To assumpsit claimed to be due to the plaintiff on the sale by him to the of certain in for the recovery terest due to the plaintiff on the sale by him to the defendant of a policy of insurance on life, the defendant pleaded, that by indenture made between the plaintiff and defendant, the plaintiff released, exonerated, and discharged the defendant of and from all claim and demand whatsoever for, upon, or in respect of the purchase of the policy, and all monies due to the plaintiff in respect thereof, and of and from the supposed cause of action in the declaration mentioned. It appeared in evidence that the policy was sold subject to a condition that the purchaser should pay down a deposit of 201. per cent., and sign an agreement for payment of the remainder on the 8th June, 1835; but, should the completion of the purchase be delayed, the purchaser was to pay interest on the balance of the purchase money, at 51. per cent. per annum, from that day until the purchase was completed. The defendant did not complete the purchase till Jan. 1836, when he paid the purchase money in full, with interest from the 8th June, and an assignment of the policy, duly executed by the plaintiff, containing a release in the terms stated in the plea, and having a receipt for the whole purchase money indorsed, was handed to the defendant. It was afterwards discovered that the plaintiff's attorney, on that occasion, under-calculated the interest by 347. :-Held, that the release was a bar to an action for that sum. 1838. Exch. of Pleas, defendant of a policy of insurance effected with the Equitable Assurance Company, in the name of the plaintiff. There was also a count on an account stated. HARDING v. AMBLER. Pleas, first, non-assumpsit; secondly, payment; thirdly, that, after the purchase of the said policy of assurance, and before the commencement of this suit, to wit, on the 14th January, 1836, by indenture then made between the plaintiff of the one part, and the defendant of the other part, &c., the plaintiff acquitted, released, exonerated, and discharged the defendant of and from all claim and demand whatsoever, for, upon, or in respect of the said purchase of the said policy, and all monies due and claimable by him for, upon, or in respect thereof, and of and from the said supposed cause of action in the first count mentioned. The plaintiff, by his replications, joined issue on the first and second pleas, and, in answer to the third, denied that the indenture therein mentioned was his deed. The particulars of demand delivered to the defendant were as follows:-" This action is brought to recover the sum of 31., for the balance due to the plaintiff from the defendant on the sale of the policy mentioned in the declaration." On the trial before Lord Abinger, C. B., at the London sittings after Trinity Term, the following facts appeared. In April, 1835, the plaintiff, who resided in Yorkshire, gave directions to his attorney in London to sell by auction a policy of insurance which the plaintiff had effected on his life in the Equitable Assurance Office. The policy was accordingly put up for sale on the 8th May, 1835, together with other property, under the following amongst other conditions:-"The highest bidder to be the purchaser. The purchasers to pay down immediately a deposit of 20%. per cent. in part of the purchase-money, and to sign agreements for payment of the remainder on or before the 8th day of June, 1835; but, should the completion of the purchases be delayed from any cause whatever, the purchasers are to pay interest on the balance of their 1835. HARDING v. AMBLER. purchase-money, at 5l. per cent. per annum, from that Exch. of Pleas, time until the purchases are completed." The defendant became the purchaser of the policy at the sum of 22901., and paid down the sum of 4587., by way of deposit, and signed a memorandum of agreement for the payment of the remainder of the purchase-money, pursuant to the conditions of sale. The purchase was not completed until the 22nd January, 1836, on which day the plaintiff's attorney met the defendant and his attorney for the purpose, and the remainder of the purchase-money was paid, together with interest at 5l. per cent., as calculated by the plaintiff's attorney, from the 8th June, 1835, to the 14th January, 1836; and a receipt was given by him for the money so received. At the same time, an indenture of assignment by the plaintiff to the defendant of the policy, dated the 14th January, having the plaintiff's receipt for the whole purchase-money (22907), indorsed, was handed over to the defendant's attorney. In the month of November following, the plaintiff, having discovered that his attorney had miscalculated the interest by the sum of 317., applied to the defendant for payment of that sum, and in consequence of his refusal to pay it, the present action was brought. It was contended for the defendant, that the plaintiff was estopped by the execution of the indenture, containing the release set out in the plea, from recovering in the action. The Lord Chief Baron reserved the point, and a verdict was taken for the plaintiff, leave being given to the defendant to move to enter a nonsuit. Erle having obtained a rule nisi accordingly, Kelly now shewed cause.-The release did not operate to deprive the plaintiff of his right of action. This claim for interest arises on an agreement collateral to that upon which the policy was purchased and the principal money was payable. By the conditions of sale, interest was to 1838. HARDING v. AMBLER. Exch. of Pleas, be paid from a given day, in the event of the purchase not being then completed. The agreement to assign the policy at a certain price is one agreement; the agreement to pay interest in a certain event is another and a collateral one. The release is "from the purchase-money and every part thereof "—that cannot apply to the contingent claim of interest. If the purchase had been completed on the 8th of June, no interest would have been claimable; and the release would clearly have applied to a discharge from the principal money only. It cannot have a different construction now. [Parke, B.-The question is, whether the interest is not a part of the purchase-money]. The intention of the parties must be looked to; and it could not be intended to release this collateral demand. The case resembles those in which it has been held that interest on bills of exchange is distinct from and not incidental to the principal sum, and that a discharge from the principal is not necessarily a discharge from the interest also. Lumley v. Hudson (a). Indeed, this sum is more in the nature of compensation money for the delay in performing the agreement, than of interest properly so called. Erle, contrà.-The consideration for the assignment of this policy clearly was the supposed receipt of the whole amount of principal and interest; and from that whole sum the plaintiff has released the defendant. If the defendant had sued the plaintiff, at any time after the 8th June, 1835, for not completing the contract, he must have alleged, in compliance with the condition of sale, that he was ready to pay the interest from that day, as well as the principal. The purchaser, by the condition, is to sign one memorandum of agreement only, having reference both to the principal money, and also to the interest, if the principal be not paid by a given day. The deed must be taken most strongly against the conveying party; and (a) 4 Bing. N. C. 15. if, as is contended on the other side, the intention of the parties is to be looked to, then it is clear that it was intended, and so understood by the attornies of both parties, that a full and final discharge should be given of all claims. in respect of the transfer of the policy. If, therefore, the words of the deed, on a fair interpretation, convey to the defendant a full discharge, the plaintiff, who used them, is estopped from saying that they did not. Lord ABINGER, C. B.-I am of opinion that the rule must be made absolute. The release, in words, applies only to the principal money, 22907.; and the question is, whether, after the plaintiff has stated that to be the purchase money, and executed a deed releasing it, he can be let in to prove that it was more. The conditions of sale stipulate that the purchase money is to be paid on or before the 8th of June, 1835; if it is not, the purchaser is to pay interest upon it at a certain rate from that day. If the stipulation had been merely that the party should pay the principal money on the 8th of June, nothing being said about interest, and when that day arrived, the money not being paid, an agreement had been then come to, that for that default interest should be paid, Mr. Kelly's argument would have been correct; that would have been a collateral agreement: but this is a contract in which interest is as much included as principal. PARKE, B.—I am also of opinion that the plaintiff, having executed this deed, is estopped from the receipt of any further consideration-money. The sum accruing by reason of the non-completion of the contract on the day limited, is an additional price; and the plaintiff has released the consideration-money, whatever it was, to the full amount, and cannot now say that more was due. BOLLAND, B., and GURNEY, B., concurred. Rule absolute. Exch. of Pleas, 1838. HARDING t'. AMBLER. |