Finch v. Mishler

Fowler, J., delivered the opinion of the Court. This is an action on the common counts with a special count on a promissory note for six hundred and fifty dollars, dated 25th May, 1899, and payable with interest on September 1st, of the same year. There was a verdict and judgment for the plaintiff for $832 and the defendant has appealed. There are four exceptions, three of them relating to rulings on the testimony, and one to the refusal to grant his motion in arrest of judgment.

We will briefly state the facts which we think necessary in order to understand the rulings we are asked to review. The plaintiff, Phares M. Mishler, held a mortgage for $4,500 on certain property in Washington County, Maryland, owned by John Hoover. The mortgage was dated 14th October, 1889, and was to run for ten years. The mortgagor appears to ⁴⁶⁰ have gotten behind in his payments of interest, taxes, See., when he leased the mortgaged property to the defendant, Roland W. Finch.

The lease provides for the payment of an annual rent of $850; two hundred dollars thereof to be annually expended for making improvements upon the property and six hundred and fifty dollars to be paid to the plaintiff At the time this lease was executed by Hoover as landlord and the defendant as tenant, the latter signed and delivered to plaintiff the note here sued on. Before the expiration of the first year of this tenancy the plaintiff sold the property under his mortgage and the wife of the defendant became the purchaser. The testimony of the plaintiff was to the effect that the consideration qf the note was the $650 of rent which according to the terms of the lease and as a consideration therefor, he covenanted to pay to the plaintiff. In other words instead of paying the money to his landlord, Hoover, it was agreed between them that it should be paid to the plaintiff.

And, during the very extended cross-examination the plaintiff repeatedly declared that to be the understanding. The effort was to show that by selling the property under his mortgage the plaintiff had violated one of the implied conditions on which the defendant gave the note. But it was shown that the sale was made subject to the lease, and that in addition to this the property which was a summer hotel, was not sold until the end of the season. On re-examination the plaintiff was asked as to the value of the property after the first of September— that is to say after the season was over.

His reply was to the effect that so far from being of any value, it was necessary to have some one to take care of it until the next spring. We are not able to see any objection to this, for it is clear what the object pf the answer was — namely to explain to the jury that in point of fact, if there was any such understanding as alleged, the defendant could not have possibly been damaged —especially as, before the proceedings for the sale had been begun, he had declared he would no longer rent, but intended to purchase the property. If the season was over at the time ⁴⁶¹ of the sale