The plaintiff mortgagee sought summary judgment against the defendant mortgagors following multiple defaults on a mortgage and fire insurance policy.
The defendants argued that the plaintiff's acceptance of a partial payment 'without prejudice' remade the agreement, requiring the plaintiff to restart the collection process, and counterclaimed that the plaintiff dissuaded a donor from paying off the mortgage.
The court granted summary judgment, finding no direct evidence to support the counterclaim and concluding that the partial payment was merely on account, not a remaking of the agreement.
The court also rejected the argument that the action was barred by section 42(1) of the Mortgages Act.
