Dunn v. Barry

BURNETT, J.

The action was for the foreclosure of a mortgage given to secure the payment of a promissory note for ten thousand dollars. The note and mortgage called for the payment of the interest quarterly, and provided that should default be made in the payment of any installment of interest when due, then the whole sum of principal and interest shall become immediate^ due and payable at the option of the holder of the note. The first quarterly installment of interest became due on June 23, 1914, but was not paid when due, $120 of such interest being paid by appellants on July 1, 1914, and the balance of said installment, to wit, $105, was paid about two weeks after said July 1st. The second quarterly installment of interest fell due on September 23, 1914, and was paid by appellants on October 16th, following. The third payment was due on December 23, 1914, and it not being paid, respondent on January 12, 1915, served upon appellants, and each of them, a notice of election, declaring che whole of said ten thousand dollar note due and payable for the nonpayment of the quarterly installment of interest -due December 23, 1914, and on January 18th following the complaint in foreclosure was filed. On January 22, 1915, appellant tendered to respondent in gold coin the sum of $225 in payment of the interest that was due on said December 23,

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1914, and five dollars additional, being the interest on said interest of $225 from December 23d to January 22d, and then and there offered to pay all costs incurred in said action by respondent and an attorney’s fee of $50, which .offer and tender was by respondent refused. The case went to judgment, and the court found that there was due plaintiff, in the aggregate, the sum of $11,024.71, and decreed a foreclosure in the usual form. From the judgment and the order denying a motion for a new trial the appeal is taken.

The first point made by appellants is: “The respondent accepted all prior payments from appellants after such payments were due, and he did so voluntarily without protest; therefore, he is estopped to elect to advance the maturity of the principal, he not having served upon appellants any prior notice of his intention so to do.” But appellants are mistaken as to the fact and the principle of law or equity embodied in said proposition. As to the acceptance of said payments the court found: “That said Dunn accepted each of such payments only after protest at the delay, and that said plaintiffs at all times prior to the commencement of this action urged and demanded that said defendants pay the interest due promptly when the same should become due, and never at any time consented to the same being paid tardily, but, on the contrary, on former occasions, when said defendants Barry did not pay to plaintiff interest due from them to him promptly when the same became due, that said plaintiff informed said defendants Barry that unless the same was paid promptly, he would foreclose his said mortgage.” We have examined the record and ascertained that there is sufficient evidence to support said finding.