(dissenting):
I dissent. The question here is whether or not the answer set tip a defense to the cause of action alleged in the complaint which was established by the evidence upon the trial. The mortgage to foreclose which the action was brought is conceded. By its provision's the principal sum becomes due on the failure of the mortgagor to pay an installment of interest for thirty days, and the only defense alleged is “ that before the commencement of this action the defendant Annie Donohue duly tendered to the plaintiff the full amount of the interest due him in cash personally, and the said plaintiff deliberately and willfully refused to accept the same from the defendant, and the. defendant made the tender within the time prescribed for the payment of the interest and has ever since been ready and willing to pay the same to the plaintiff.” No application is made to be relieved from a default, if one occurred, and the simple question before the trial court was whether or not this allegation of the answer was sustained by the evidence. The complaint alleges that “ the interest upon said bond and mortgage which became due and payable on the 6th days of April andf October, one thousand nine hundréd and one, has never been paid; that more than thirty days have elapsed since the same became due and payable ; that the plaintiff has.elected and now elects to deem the whole principal sum to be immediately due and . payable.” The plaintiff testified that the interest that was payable on the 6th day of April, 1901, was not paid; that the interest that was payable October 6, 1901, was not paid and remained unpaid down to the trial. The plaintiff admitted that the interest that became due on October 6, 1900, was tendered to him and that he refused to accept it, he having at that time an action pending to set aside this mortgage as having been obtained by fraud and to restore a former mortgage that had existed upon the property and which had been satisfied upon the execution of the mortgage in suit. There was, however, no proof *337to show that the interest that became due in April, 1901, and October, 1901, had ever been tendered. The former action was discontinued by an order entered upon a consent of all the parties to the action, this defendant being one of the defendants, and her attorney consenting on October 5, 1901, the day before the installment of interest due October 6, 1901, was payable. That action having been discontinued, all claim that the present mortgage was not to be enforced was at an end ; the defendant had thirty days within which to pay the interest that was then due. She made no effort to pay the interest; no tender of it was made and that default extended until after the commencement of this action, which was on November 18, 1901, and after the default had extended thirty days, so that, assuming that the defendant’s position excused the tender of that interest up to the date of the discontinuance of the first action, after that action was discontinued, the defendant was certainly bound to pay or tender the interest that became due on a subsequent day, and a default continuing for upwards of thirty days gave the plaintiff the right to elect that the whole amount secured by the mortgage should become due. There is no claim that she made any effort to tender this amount. If she did "not know the residence of the plaintiff,’ she knew that he was represented in the action by ■ an attorney, and she certainly could have tendered the- interest to him..
I think the defense alleged Was unproven and that upqn the conceded facts the plaintiff was entitled to judgment. . 1
Judgment reversed, new trial ordered, costs'to appellant, to abide event.