Joseph Tucker versus Moses Buffum, 16 Pick. 46

Wilde J. delivered the opinion of the Court. This case comes before us again on exceptions to the master’s report, stating an account, and the defendant also interposes a new objection to the plaintiff’s right to redeem, namely, that the suit was not commenced until more than one year after tender made. This objection, however, comes too late, and we have not considered it. It should have been pleaded or have been relied on in the answer as a distinct ground of defence. The defendant having omitted to do this at the proper stage of the proceedings, must be considered as having waived the objection.

He cannot now be allowed at this late stage of the proceedmgs to begin his defence de novo, the defence heretofore made having been determined against him. With regard to the exceptions, there does not appear to me to be much doubt or difficulty, and I shall therefore state the opinion of the Court very briefly. 1. The first exception is, that the master allowed the rents and profits rece ved before the tender to be charged, thereby reducing the balance the defendant will be entitled to receive below the sum tendered. This allowance appears to the Court to be manifestly right and equitable.

As the defendant refused to receive the sum tendered, and put the plaintiff to prove the balance due, and that has been ascertained, there can be no reason why the plaintiff should be bound by the sum tendered, if by mistake and in ignorance of the facts, he tendered a larger sum than was then actually due. This deduction of the rents and profits from the sum tendered is allowed by the St. 1818, c. 98, § 3. This exception therefore is overruled. 2. The second exception is also overruled. The defendant is bound to account for rent at its fair value.

The master decided on this principle, and we can perceive no reason for questioning the correctness of his decision. 3. The third exception relates to the claim of interest on the sum tendered ; in respect to which we are of opinion, that the sum of $205-05 ought to be allowed, that sum having been received by the plaintiff for the use of the money from February 1830 to November 1831; during the residue of the time the money remained in the hands of Wilson from whom it was borrowed ; and the plaintiff was bound to pay interest therefor to Wilson.

This part of the claim of interest we think was rightly disallowed. 4. As to the fourth exception we are of opinion, that the defendant is entitled to receive the commission of five per cent for rents by him collected, and no more. 5. The last exception is, because the master disallowed the defendant’s claim for the expenses of certain repairs and improvements and yet charged him with the increased rent by reason of such repairs and improvements.

This exception appears to us to be well founded, and we are of opinion that the expenses of these repairs ought to be allowed When the statement of the amount shall be corrected conformably to these decisions, a final decree will be entered.