Righetti v. Monroe, Lyon & Miller, Inc.

SPENCE, J.

The plaintiff brought this action upon a promissory note executed in his favor by the defendant corporation. Plaintiff obtained judgment upon a trial by the court sitting without a jury and defendant appeals.

The note in the sum of $10,000 was executed in 1926. Interest on the note was payable monthly, together with installments of not less than $200 on the principal. The note contained the following provision: “And it is further agreed that in case of default in the payment of said interest for a period of ten days after the same shall become due, and demand having been made therefor, then such interest so in default shall be added to and become a part of the principal and thereafter bear the same rate of interest; and at any time during default in the payment of said interest, or in the payment of any installment of principal in the manner aforesaid, for a period of ten days and after demand having been made therefor, the entire unpaid balance of said principal and the interest thereon, shall forthwith become due and payable at the election of the holder of this note, without notice.” Defendant failed to pay the interest and installment due upon December 15, 1928, and plaintiff elected on December 31, 1928, to exercise his rights under the foregoing acceleration clause. On that .day he caused the note to be presented and demand was made for payment of the entire balance of the principal amounting to $5,000.

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Defendant failed and refused to pay said unpaid balance, but thereafter endeavored to tender the interest and installment of principal which became due on December 15th, which tender was refused. Plaintiff thereupon filed his complaint.

In the trial court defendant relied upon an alleged waiver by plaintiff of strict performance of defendant’s obligations under the note by showing that defendant had not previously paid the interest and installments promptly as they became due and that plaintiff had accepted such delinquent payments. It was stipulated that most of the previous payments were made after they became due and the trial court found upon that stipulation “that most of the payments up to and including November 15, 1928, were accepted by plaintiff after their maturity”. The trial court, however, found in substance that plaintiff had not waived strict performance of the note; that defendant was in default; that plaintiff elected to declare the entire unpaid balance due; and that said balance of $5,000, together with interest, was due, owing and unpaid. Judgment therefor was entered in favor of plaintiff.