General v. Anthony

NOURSE, P. J.

Plaintiff sued upon a note secured by a mortgage upon real property and had judgment. We copy the statement of facts from appellants ’ brief:

“On July 1, 1926, Mr. and Mrs. Anthony executed a note for $2250.00 to W. E. Mabee and Grace W. Mabee, husband and wife, as joint tenants. Said note became due on July 1, 1929. Prior to that date the note and mortgage were assigned to the Pan-American Bank of California as security for a loan obtained from it by the Mabees. On June 14, 1929, a few weeks prior to maturity of the note, the defendants and appellants requested a two-year extension of both the note and mortgage. An agreement was drawn up and signed by Ira G. Anthony and Lola M. Anthony. W. E. Mabee never signed the agreement. Grace W. Mabee did not sign the agreement until January 21, 1935, six months before the institution of this suit of foreclosure of the mortgage. The agreement was never signed by the Pan-American Bank of California who, on June 14, 1929, was the owner and holder of the note and mortgage. (Clk. Tr., p. 1.) The action was filed June 15, 1935. ...”

[323]

Appellants’ first ground of attack is that the action is barred by section 337 of the Code of Civil Procedure because the extension agreement was not properly executed, and because there was no proof of an oral agreement to extend. Appellants are in error in their conception of the record. Evidence was received going to prove that, prior to the maturity of the note, the parties had orally agreed to the extension, that it was accepted by the mortgagee after the mortgagors had executed it, that the latter accepted and retained the benefits of the extension of time given by the oral agreement, and that this agreement had thus become fully executed before suit was commenced. The trial court’s finding that the terms of the proposed extension were fully accepted by the payee is supported by evidence from appellants themselves—one testifying “the bank agreed it (the extension) would be two years ’ ’, the other, 1 ‘ I think it was settled in our mind it had already been signed and settled.” The proposal thus became a valid oral agreement to extend the loan and the time of payment to July 1, 1931, and the writing executed by the mortgagors was given as an affirmance of the oral understanding and was in full harmony with it.