Benjamin Chandler and W. L. Wittich, Appellants, vs. George W. Wright, Appellee, 16 Fla. 510

The Chief. Justice delivered the opinion of the court. It is true that while a debtor is prevented by an injunction or other order of a court from paying his debt at maturity, he is not liable for interest thereon, because he lawfully withholds the money. But is this a case in which the •debtor has been so prevented ? An injunction was issued which restrained the conveyance of certain real estate to the •defendant.

The effect of the injunction was obviated by the parties by an agreement, whereby the conveyance was consented to upon condition that certain notes, ^secured by mortgage on the property, (given for the purchase price ■thereof,) should be deposited with one Hutchinson as trustee, to be held by him subject to the determination of the suit in which the injunction was issued. One of these notes was ■payable one day after date, without mentioning interest, and the two other notes were payable at a future day with interest.

While the notes and mortgage were, thus put in the place of the property for which they were given, the injunction did not, of course, restrain the payment of the money to the trustee when it became due, nor does it appear that the trustee was prevented from receiving it, or from taking meas-ures to collect it. The defendant was ready to pay each of the notes at maturity, and held the money apart from his other money, and’ from other employment.

When the note first due matured, - the money was not tendered; when the next note fell due no tender was made, and when the third note matured the defendant offered to pay the trustee the principal of all the notes, with interest up to maturity, less four hundred dollars which he had advanced to Chandler on account of the notes’ while they were in the hands of the trustee; but the trustee refused to receive it in discharge of the notes, because it did not cover the whole amount of principal and interest to the time of the offer.

When the suit in which the injunction had issued was settled, the defendant renewed the offer to the trustee, who again refused to receive the money, for the reason that defendant declined to pay interest beyond' the maturity of the notes. We find no unconditional tender by the. defendant of the principal of the notes or either of them, nor even notice to the-trustee or to the parties that the money was set apart and held' in readiness to pay the notes, or either of them. So far as the injunction is concerned, its force was spent when all the parties to it by contract put in its place another security.

It is not apparent that a payment of the money to the mortgagee, and the surrender by the trustee of the notes and mortgage, however it might have put the plaintiff in the injunction suit to inconvenience,-would have been in anywise a violation of the injunction. The trustee and the parties to the transaction may have become liable to certain-proceedings for a violation of the contract of trust and confidence, but how would they have been guilty of a contempt of the injunction ?

The thing enjoined had been expressly waived, and new security had been given by contract for a non-performance of which a new remedy must have been pursued. Howard vs. Durand, 36 Grá., 346. The notes were given by the defendant here for the purpose of securing the purchase money of the land purchased, and for the purpose of deposit with the trustee as security to the complainant in the injunction suit, and to be subject to the order of the court in that suit upon rendition of a final decree therein. The notes were voluntary agreements to pay money at specified times.

When the note payable one day after date became due, it was chargeable with interest by law, and the law was part of the contract. There was interest to be paid on the other notes from their date by their expressed terms, and after they became due they bore interest according to law.

Had it had been the intention of the parties that these notes should not draw interest, as is claimed, after they should become due and during the pendency of the injunction suit, we must presume that intention would have found expression in some manner ; but instead of this the contract was that interest should , be paid until the notes were satisfied. The deposit of the notes with a trustee did not change their legal effect.

The trustee was the trustee of the plaintiffs in this and the other suit and not of this defendant, and a payment or tender to the trustee would have worked a discharge of the defendant as effectually as if the notes had been in the hands of the payees and the payment or tender made to them.

The upshot of the whole matter is that the defendant agreed to pay principal and interest, without reference to the character of the holder; that he has not been restrained by any legal process or order from so doing, nor from tendering the money if he saw fit to do so, and that he has neither paid nor tendered as he agreed to do, though the depositary of the notes was ready to receive payment of them as they became due. That he was ready to pay is not what he engaged; he agreed to pay, and failing to do so he is liable to all the consequences of the failure.

The decree of the Circuit Court is reversed in so far as it denies, or fails to allow, the computation of interest on the notes from their maturity to the time of payment or tender of the amount due thereon according to their import, and a further decree will be made by the Circuit Court in accordance with this order and the opinion of this court in the premises.