Heimstadt v. Tapered Parts, Inc.

SHINN, P. J.

The present action was for the foreclosure of a chattel mortgage in which judgment of foreclosure was decreed. Defendant appeals from a portion of the judgment which it is claimed was in excess of the amount due. The contention is that a tender was made of the amount due which was sufficient to stop the running of the interest obligation and to save the defendant the costs of suit.

The note provided: “Should an attorney be employed to procure payment hereof by suit or otherwise, the undersigned, jointly and severally, agree to pay a reasonable sum as attorney’s fees therefor.” On February 14, 1955, plaintiff was in possession of defendant’s check for $2,000 which had been forwarded as partial payment with a letter which stated that the balance unpaid was $12,000. The check was returned by plaintiff’s attorney with a letter which stated that there was an additional amount payable of $212, that defendant was in default, plaintiff elected to declare the entire amount of the note and interest immediately due, demanded payment including the $212 and the sum of $300 as attorney’s fees.*

1

No pay

[713]

ment was made. On July 8th defendant made a written offer of payment.2 Pour days later the present action was commenced. It is not questioned that plaintiff had a right to accelerate the payment of the unpaid balance. Neither is it questioned by plaintiff that a sufficient offer of payment stops the running of interest and relieves the debtor of liability for attorney’s fees and costs. (Civ. Code, § 1504;

Holland

v.

Paddock,

142 Cal.App.2d 534 [298 P.2d 587].)

The questions of law are whether plaintiff had a right to demand the payment of $300 as attorney’s fees and whether defendant’s tender of payment was sufficient to stop the running of interest and to save defendant from costs of suit.

Upon the first point the only contention appears to be that the attorney had done nothing but write one letter, demanding payment, from which we may infer that defendant now regards the charge as excessive. It is not claimed there was no obligation to pay a sum as attorney’s fees. We shall refer later to the amount of the fee demanded by plaintiff.