Denny v. Hartley

FOURT, J.

This is an appeal by the defendant from a judgment which in effect awards plaintiffs certain monies because of a usurious transaction.

On or about May 6, 1953, the parties hereto entered into an escrow transaction with the California Bank, Sunset and Alvarado branch, wherein, among other things, the defendant,

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as the lender, agreed to hand the bank $25,000, which was to be used for the plaintiffs when the bank could secure for her a trust deed note executed by plaintiffs for $25,000 in favor of defendant, dated May 6, 1953, due one year after date, with interest at 10 per cent per annum, interest payable quarterly beginning August 15,

1953;

wherein further a privilege was reserved by plaintiffs to pay the note in full prior to maturity upon their paying ninety days’ unearned interest. The note was to be secured by a deed of trust on certain described real property.

The note apparently was prepared by the bank, as the escrow holder, and submitted to the plaintiffs for their signature. The note was upon the bank’s printed form with certain blanks filled in with typewriting. The note so submitted to the plaintiffs was signed by them and delivered to the bank, and read as follows:

“$25,000.00 Los Angeles, California, May 6th, 1953 One Year On Ob After.......after date, for value received, I promise to pay to Emma Hartley, a widow, or order, at Los Angeles, California the sum of -Twenty Five Thousand and No/100 — Dollars, with interest from date.......until paid, at the rate of -Ten- per cent per annum, payable Quarterly, beginning August 15, 1953

“Should interest not be so paid it shall thereafter bear like interest as the principal. Should default be made in payment of interest when due the whole sum of principal and interest shall become immediately due, at the option of the holder of this note. Principal and interest payable in lawful money of the United States. If action be instituted on this note I promise to pay such sum as the Court may fix as attorney’s fees. This note is secured by Deed of Trust to California Trust Company, a California corporation.