Copp v. Guaranty Oil Co.

JAMES, J.

This action was brought upon a promissory note executed by the defendant. Plaintiff had judgment, and a motion madé by the defendant for a new trial was denied. The appeal is taken from the judgment and also from the order denying the motion.

The promissory note, which evidenced an indebtedness of fourteen thousand one hundred dollars, was dated at Los Angeles, June 14, 1911, and made payable “on or before two years after date.” It contained a provision that if interest payments were not made when due, “then the whole sum of principal and interest shall, become immediately due and payable at the option of the holder.” In December, 1911, an installment of interest became due, and it was because of default in the payment of this interest that the plaintiff declared an option to mature the full amount of the note. On the 29th of January, 1912, written notice was given to the defendant company of this election on the part of the plaintiff and this action was shortly thereafter brought. The payee of the note was W. H. Fuller, who, after the December interest payment became due, indorsed the note to this plaintiff. As collateral security there was delivered to the payee with the note and afterward transferred to his indorsee thirty thousand shares of the Lucky Boy Oil Company stock. In the answer of the defendant issue was raised as to the matter of the note being indorsed to this plaintiff, and it was denied that any default had been committed in the matter of the payment of interest at the time of the alleged election of the plaintiff to declare the whole amount of principal and interest due. In the separate defense, more particular reference to which will be hereinafter made, one of the allegations was that before the original payee had indorsed the note to plaintiff, tender had been made to such

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payee of the amount of interest due on the note, together with compound interest, all of which the payee refused to accept. It appeared in evidence that prior to the time this action was brought, the representative of defendant called upon the attorney for this plaintiff and made request to be allowed to pay the interest, both simple and compound, which had then accrued; that the attorney for plaintiff informed such representative of defendant that he had no authority to accept anything except the full amount of principal and interest. There was a conflict in the testimony as to when this conversation was had. Two witnesses for the defendant testified that it occurred on the twelfth day of January, 1912 (this action having been commenced early in March of the same year). There was no dispute in the evidence showing that on the twenty-ninth day of January, 1912, a letter was written by the attorney for this plaintiff to the defendant, notifying defendant of the election of the plaintiff to declare the whole amount of the note, both principal and interest, due on account of the default in the payment of the installment of interest which had become due in December, 1911. The attorney for the plaintiff testified that the conversation had with the representatives of defendant, wherein an offer was made to pay overdue interest, occurred after the dispatch and receipt by them of the letter wherein the option was exercised to mature the note. In the presence of this conflict in the testimony, the findings of the trial court wherein they are adverse to the appellant’s contention as to that matter must be sustained. We find in the transcript the record of statements made by the learned trial judge, wherein it was suggested as the view of the court that it was immaterial as to whether any tender of interest was made before or after the receipt of the written notice of election to mature the note, because, as stated by the judge, when the parties appeared at the office of plaintiff’s attorney they were told that the attorney had no authority except to collect the full amount of the note. The trial judge declared that such a statement made under such circumstances was sufficient to mature the note and to show an election on the part of the plaintiff so to do, and that any offer then made by the defendant to pay the interest then owing was ineffectual. We are hardly prepared to agree with the trial judge in this view, but we cannot disturb the judgment because of such