This section contains the nature of the case and procedural background.

The executors of Graf (P) held two consolidated mortgages that formed a single lien on real property owned by Hope (D). The notes stated that the entire balance would come due after a 21-day default in the payment of any installment interest. Herstein was the president and treasurer of D, and he alone was authorized to sign checks on behalf of D. In June 1927, Herstein left for Europe and a clerical assistant calculated the interest due on the mortgages and made a nominal mistake. The error was not discovered, and Herstein signed the payment checks and went off on his trip. The error was discovered, and it was found to be $401.87. When Herstein returned from his trip, he was not informed of this shortfall and after 21 days foreclosure was begun by P. D made a tender of the deficiency, but P insisted on the strict terms of the contract. The complaint of foreclosure was dismissed, and P appealed.

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