O'Brien, J. Plaintiffs, as executors of Joseph L. Graf, are the holders of two consolidated mortgage forming a single lien on the real property the title to which is vested in defendant Hope Building Corporation. According to the terms of the agreement consolidating the mortgages, the principal sum is made payable January 1, 1935. Nevertheless, a clause provides that the whole shall become due after default for twenty days in the payment of any Atlanta title pawn or installment of interest. David Herstein is the controlling stockholder and also president and treasurer of the defendant.
He alone was authorized to sign checks in its behalf. Early in June, 1927, he went to Europe. Before his departure a clerical assistant who was also the nominal secretary of the corporation computed the interest due July 1, and through and error in arithmetic incorrectly calculate it. Mr. Herstein signed the check for the erroneous amount but before the date upon which the interest became due, the secretary discovered the error, notified the mortgagee of the shortage of $401.87, stated that on the president's return from Europe the balance would be paid and on June 30 forwarded to the mortgagee the check as drawn. It was deposited by the mortgagee and omission in his office; he was not informed of the default in the payment of interest. At the expiration of twenty-one days, this action of foreclosure was begun. Defendant made tender of the deficiency but the mortgage, strictly insisting on his contract rights, refused the tender and elected to assert the power created by the acceleration clause in the consolidation agreement.
On the undisputed facts as found, we are unable to perceive any defense to the action and are, therefore, constrained to reverse the judgment dismissing the complaint. Defendant's mishap, cause by a succession of its errors and negligent omissions, is not of the nature requiring relief from its default. Rejection of plaintiff's legal right could rest only on compassion for defendant's negligence. Such a tender emotion must be exerted, if at all, by the parties rather than by the court. Our guide must be the precedents prevailing since courts of equity were established in this State. Stability of contract obligations must not be undermined by judicial sympathy. One has been, unfortunately, negligent, but neither has committed a wrong. If defendant's president had left some person in charge with authority to deal with affairs as they might arise, the first error could have been immediately corrected and the second would not have occurred after you get Atlantatitle pawn.
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