Bissell v. Forbes

COOPER, J.

Action to recover on a promissory note, and to obtain a decree of foreclosure of a mortgage given as security therefor.

The court below held that the promissory note, except the last installment, was barred by the statute of limitations, and gave judgment for the last installment only, with a decree of foreclosure. From this judgment plaintiff prosecutes this appeal.

The sole question here is as to the construction to be placed upon the promissory note, which reads as follows:—

"$482.40. San Francisco, Cal., Oct. 27th, 1893.

“ On or before three years after date for value received, we promise to pay to Wm. C. Bissell, or order, the sum of four hundred eighty-two and 40/100 (482.40) dollars in United States gold coin with interest at the rate of eight per cent per annum, payable monthly. Payments shall be made as follows: Eighty ($80) dollars on the first day of November, 1893, and the balance in monthly installments of not less than twelve and 50/100 ($12.50) dollars including interest and principal, on the first day of each and every month

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thereafter until both principal and interest are fully paid This note is secured by a mortgage bearing even date herewith.

‘ ‘ Sheridan Fobbes,

“Louise Mills Fobbes.”

The action was commenced October 16, 1900, and in time if the whole of the note became due October 27, 1896, and not' before, but not otherwise. The note was made in contemplation of all the payments being made within three years after its date, but it contains the express agreement that eighty dollars was to be paid November 1, 1893, and $12.50 on the first of each and every month thereafter. There is no ambiguity as to this. The parties agreed to it, and it is not for the courts to make contracts for them. It is elementary that the statute of limitations commences to run from the time an action might be brought. If the first installment, eighty dollars, was not paid November 1, 1893, the plaintiff could immediately have commenced an action to recover said amount, and to foreclose his mortgage to that extent, and so of the $12.50 due December 1, 1893, and of each subsequent installment. It is precisely as though a promissory note had been given for the eighty dollars, and for each payment of $12.50. The defendants agreed to pay the whole sum on or before three years from date, but they agreed to pay the separate installments at the times provided for in the note.