Dunn v. Barry

The action was for the foreclosure of a mortgage given to secure the payment of a promissory note for ten thousand dollars. The note and mortgage called for the payment of the interest quarterly, and provided that should default be made in the payment of any installment of interest when due, then the whole sum of principal and interest shall become immediate^ due and payable at the option of the holder of the note. The first quarterly installment of interest became due on June 23, 1914, but was not paid when due, $120 of such interest being paid by appellants on July 1, 1914, and the balance of said installment, to wit, $105, was paid about two weeks after said July 1st. The second quarterly installment of interest fell due on September 23, 1914, and was paid by appellants on October 16th, following. The third payment was due on December 23, 1914, and it not being paid, respondent on January 12, 1915, served upon appellants, and each of them, a notice of election, declaring che whole of said ten thousand dollar note due and payable for the nonpayment of the quarterly installment of interest -due December 23, 1914, and on January 18th following the complaint in foreclosure was filed. On January 22, 1915, appellant tendered to respondent in gold coin the sum of $225 in payment of the interest that was due on said December 23,

The first point made by appellants is: “The respondent accepted all prior payments from appellants after such payments were due, and he did so voluntarily without protest; therefore, he is estopped to elect to advance the maturity of the principal, he not having served upon appellants any prior notice of his intention so to do.” But appellants are mistaken as to the fact and the principle of law or equity embodied in said proposition. As to the acceptance of said payments the court found: “That said Dunn accepted each of such payments only after protest at the delay, and that said plaintiffs at all times prior to the commencement of this action urged and demanded that said defendants pay the interest due promptly when the same should become due, and never at any time consented to the same being paid tardily, but, on the contrary, on former occasions, when said defendants Barry did not pay to plaintiff interest due from them to him promptly when the same became due, that said plaintiff informed said defendants Barry that unless the same was paid promptly, he would foreclose his said mortgage.” We have examined the record and ascertained that there is sufficient evidence to support said finding.

Moreover, it is not a proper ease to invoke the principle of estoppel, as claimed by appellants. It does not follow that because the holder of the note after default in the payment of an installment of interest has elected to waive immediate payment and accept the compounding of interest as provided for, or has accepted the tardy payment of the same and has failed to exercise his option to declare the whole amount of the claim due, he is bound to waive its exercise at all subsequent defaults unless he give prior notice of his intention to make his election. The true and just rule is that while he. exercises his option promptly, he may do it at the maturity and upon default of any installment of the interest. (Camp

“The promise is an absolute one, in the first instance, to pay the interest when due, and conditional, in the second instance, that failing in the first, the obligor will at once be bound at the option of the creditor to pay a larger sum, which larger sum is, however, nothing more than he really owes already, and must, under any circumstances, sooner or later be called on to pay.”

Nor is there any more merit in the contention of appellants that “the respondent, as to the default in interest upon which the present foreclosure is predicated, expressly and specifically lulled appellants into a sense of security.” The finding as to that being adverse to the claim of appellants was to the effect that they were not lulled into security by any act or declaration of respondent, nor were they misled or deceived by anything done or said by respondent. In support of this finding it is sufficient to quote the following testimony of respondent: “When I saw Mr. Barry on December 23, 1914, and he said he would pay the interest in a few days, I did not say that was all right. I did not say anything at all similar to that. I said nothing to him about being willing to give him any additional time in which to pay his interest. I never

The third contention that appellants did not know where to send the interest, since respondent’s letters came from different points in Northern California, is entirely destitute of merit. As to this the court found: “That it is true that at the time of the filing of the amended answer of the defendants Barry herein plaintiff was a resident of the city of Alameda . . : That it is not true that the particular or specific address of said plaintiff in said city of Alameda was unknown to said defendants or to either of them, . . . but that it is, on the contrary, true that at all times subsequent to several months prior to the institution of this action said defendants Barry, and each of them, were informed by plaintiff and knew the exact and specific address of said plaintiff in the said city of Alameda and the number of the street of such address.” Dunn so testified, and there is circumstantial evidence to the same effect. But even if appellants had not known the specific address, they could have made the payment as provided in section 1500 of the Civil Code.

Manifestly the tender of all the interest due after plaintiff had exercised his option to advance the maturity of the note could not affect the right of respondent to bring suit, which right had already vested. If appellants had tendered the full amount due on the note, including the principal, they would then have met the obligation which they had incurred. In other words, when appellants, fifteen days after receiving

There are many specifications of the insufficiency of the evidence to support certain findings. Some of these specifications are contrary to the express stipulation of the parties, some of them are addressed to matters entirely immaterial, and as to the others, respondent points out portions of the record which entirely justify the court’s conclusions. We can see no earthly good in noticing them specifically. Indeed, respondent has clearly and conclusively answered every contention of appellants, and the latter must have concluded that no plausible reply could be made as they filed no closing brief, nor have they made any oral argument. The fact is that one can hardly resist the conclusion that this appeal was taken for the 'purpose of delay. There is certainly less merit in the various contentions than usually characterizes the position of an appellant. We consider it a proper case to impose a penalty.

The judgment and order are, therefore, affirmed, with one hundred dollars damages for a frivolous appeal.

Chipman, P. J., and Hart, J., concurred.