Kent v. Lampman

DRAPEAU, J. pro tem.

Three individuals and a corporation, .as joint makers, made, executed and delivered to plaintiff a profaissory' note for $6,000. In preparing the note a mimeographed form was used, and the blank for a maturity date was not filled in, so that that portion of the note read: “-after date for value received.” The note also recited that collateral security was deposited for the payment thereof, with the following provision: 18That lone C. Kent has the right'tó call for such additional security as she may deem, proper^ and. on failure to respond forthwith to such call, this obligation shall immediately thereupon become due and payable.; . . .” Notice of demand for additional security was served upon the makers of the note and not complied with, whereupon complaint was filed in the superior court to enforce the obligation. ■ .

- Default of - one of the individual defendants was entered; the' action was dismissed without prejudice as to another individual defendant. The trial court found in favor of plaintiff and' rendered judgment for the principal sum of the note, together with attorney’s fees and interest against tlie corporation defendant and two of the individual defendants, one of whom had answered and one of whom had defaulted.

Upon áppeal from this judgment by one of the individual defendants and the corporation, five defenses are presented:

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First: The provision above quoted in the note relative to calling for additional security is so ambiguous and uncertain as to make it void, and that in any event, the plaintiff in her demand for additional security did not specify what security was required, thus making the demand void and of no force and effect.

Second: Action was prematurely filed because the note did not contain a due date, and at the time of its execution an agreement was entered into between plaintiff and the makers which established a condition precedent upon which payment depended; and, in any event, the collateral security constituted a mortgage on personal property which may be foreclosed in only one way.

Third: Neither the conditions precedent upon which the maturity of the note depended had come to pass, nor had a reasonable length of time elapsed within which such conditions could have been performed, so that the plaintiff might declare the note to be due.