Guyselman v. Ramsey

GOOD, J. pro tem.

*

Defendant and cross-complainant appeals from a summary judgment entered in favor of plaintiffs and cross-defendants in a case arising out of a promissory note for $8,000 with interest at 5/6 of 1 per cent per month, dated January 3, 1957, and payable $60.48 interest only the first month, 42 monthly installments of $100 each thereafter and the entire balance of principal and interest one month after the last of the $100 payments. Execution of the note is not denied by defendant. Both parties will be referred to herein simply as plaintiff and defendant. However, as two promissory notes require reference the note sued upon will be referred to as “Subject Note” and a note

[804]

pledged as security for the subject note and executed October 10, 1956, by Ramsey Corporation to defendant will be referred to as “Pledged Note.”

The pledged note was secured by a second deed of trust on certain property on Broderick Street in San Francisco that by reference to Book 6136 Official Records of the City and County of San Francisco incorporates the standard provisions authorizing a beneficiary to collect rentals in the event of specified defaults including failure to pay installments of either the pledged note or any note secured by any prior deed of trust. A first deed of trust subsisted against the Broderick Street property. The “Pledge of Note and Deed of Trust and Chattel Mortgage and Agreement of Guaranty” dated January 3, 1957, contained provisions authorizing but not requiring plaintiffs, as pledgees, to collect all amounts accruing under the pledged note and to enforce payment thereof; gave plaintiffs the election to proceed against defendant upon the loan ($8,000) without first proceeding upon the note or the deed of trust or exhausting any other security; and, provided for an endorsement of the pledged note to plaintiffs together with assignment and delivery of the deed of trust, possession thereof to be retained for the purposes of the pledge.

The subject note represented a loan procured through the agency of Pacific Plan (whose identity with Pacific Home Finance and Mortgage Co., Inc., sometimes referred to as Pacific Home, appears to be conceded by the parties) pursuant to an “Agency Agreement Proposing Pledge” executed by defendant on October 19, 1956, wherein defendant appointed Pacific Plan his agent to find and procure a lender willing to lend $8,000 upon the terms and pledge therein specified. This agreement contained an estimate of costs and brokerage specifically authorizing the deduction of $1,200 brokerage from loan funds payable to defendant if the loan Avas consummated.