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was given. It is admitted

已有 146 次阅读2012-2-28 13:54

was given. It is admitted

 that there was In existence, at the time of the execution of the security, but the single indebtedness of $5,000 to mature or become due, If it was not already due. Therefore, what necessity could there have been or what purpose could have been subserved by the Insertion In the defeasance of a provision as to any other indebtedness than the said $5,000, if the truth Is that the Cheap Ralph Lauren parties did not contemplate that there might be created in the future an additional indebtedness for which the mortgage should stand as security as well as for the existing debt? If the said $5,000 Indebtedness constituted the sole indebtedness for which the mortgage was intended to be security, why did not the defeasance so provide and declare that the security was intended solely for that specific indebtedness? These questions cannot be answered consistently with the contention of the appellants unless we are prepared to hold that the words hereafter to become due were intended to bear absolutely no meaning whatever, and this we are not at liberty to do.3 But, if there be discerned any substantial reason for imputing ambiguity to the phrase itself and, as previously declared, we do not think that there is, such reason must entirely disappear upon a consideration of the testimony addressed to that point.The fact is not disputed that the bank did advance to the company, after the security was given, other moneys than that which had been advanced before the mortgage was executed.ager of the Mission street branch of the bank, and with whom W. R. Goodbody, either in person or by his agent, Laura Palmer, conducted all the Ralph Lauren financial transactions Involved here, testified that it was expressly agreed and distinctly understood by the Goodbodys, at the time the mortgage was executed, that it should stand as security not only for the Indebtedness existing when the Instrument was made, but also for any future advances which the bank might make. He further testified to conversations with Goodbody, Sr., held after the execution of the note for $3,900, in which the latter at least tacitly admitted it to be his understanding that the mortgage should operate as a continuing security for such future advances as the bank might make to the company from time to time.The plaintiff also testified that, subsequent to the giving of the mortgage, W. R. Goodbody stated to him that the mortgage was intended as security for future loans.Opposed to this testimony is that of W. R. Goodbody and Laura Palmer, who denied that the mortgage was intended to have the effect claimed for it by the plaintiff, and it is claimed that these witnesses are supported by the following circumstances, viz.: 1 That, in the payments of monthly interest to the bank, the sum so paid by Goodbody each month corresponded in amount with the sum due as interest on a $5,000 loan at the rate of interest called for by each of the notes. 2 That the bank, as to the note for $3,900, having participated in the settlement of the affairs of the company by the creditors' committee and agreed to accept dividends from the creditors' committee in payment of said note, treated the latter transaction as not having been covered by the mortgage, and it is therefore argued that such action on the part of the bank as to said note is evidence that it was not the intention of the parties that the mortgage should stand as security for its payment.The effect of the testimony of Goodbody, Sr., and Laura Palmer is merely to raise a conflict upon the point, and, as to the circumstances mentioned, Cole explained Ralph Lauren Outlet that, as the mortgaged property was of Cheap Ralph Lauren Polo no greater value than $0,500, it was agreed between him and the Goodbodys, after http://www.ralphlaurensoutlet-online.com the company went into the hands of its creditors, that it would be better for all parties to treat the $3,900 note as unsecured, so that the bank could participate in the creditors' settlement of the affairs of the company and so pay that note, in whole or in part, from the dividends returned to the creditors by the committee thereof 59

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