Appeal, No. 97, Jan. T., 1959, from judgment of Court of Common Pleas No. 2 of Philadelphia County, June T., 1957, No. 1201, in case of Chestnut Corporation v. Bankers Bond and Mortgage Company. Judgment affirmed.
Samuel D. Goodis, with him, Allen J. Levin, and Folz, Bard, Kamsler, Goodis & Greenfield, for appellant.
Melvin Alan Bank, with him Maurice A. Bank, and Bank & Minehart, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Mcbride, JJ.
OPINION BY MR. JUSTICE BELL
This appeal involves the question of whether defendant mortgagee is entitled to a premium, when the mortgage is paid off in the premium period as the result of a fire.
Margaret Chapman was the owner of property known as premises 801-09 Chestnut Street, Philadelphia. On April 9, 1954, Margaret Chapman gave her bond and accompanying mortgage in the just principal sum of $300,000*fn1 payable in (approximately) 19 years in monthly installments of $2,000.
On September 28, 1955 plaintiff corporation purchased the premises from Margaret Chapman subject to the above mentioned mortgage. The building on the premises was insured against loss by fire in the amount of $450,000, with proceeds payable in the event of loss to the parties as their interests may appear. The policies contained the usual mortgagee clauses. On December 26, 1956 the building was completely destroyed by fire. On February 26, 1957 the proceeds of the fire insurance policies were distributed by defendant, acting as agent for all the parties, among the plaintiff, defendant and other junior lien holders not material to this action. Defendant received in payment of its interest, not only the entire unpaid principal of the mortgage together with accrued interest, but also the sum of $5,491.31. This latter sum represented a 2% consideration for prepayment of the principal mortgage debt prior to maturity. The parties expressly agreed that the payment of this sum was without prejudice to plaintiff's right to claim that it was not payable to defendant. Plaintiff then filed this suit in assumpsit for the above sum, and the trial Judge, sitting without a jury, found a verdict for plaintiff in the amount of $5,491.31 and judgment was entered thereon.
Both the mortgage and the bond provided "... with further privilege to Obligor to pay balance of principal in full before maturity in accordance with terms set forth in Rider attached to Bond and Warrant, ..."
The Rider provided "The Obligor shall have the right to prepay the entire principal debt at any monthly installment upon 30 days prior written notice, during the third, fourth and fifth years of the term of this obligation provided, there shall also be paid accrued interest to date of ...