Youngs v. Wright

MARKS, J.

This action was brought to foreclose a mortgage given hy appellants to secure the payment of a promissory note in the principal sum of $15,000, dated March 1, 1929, due five years after date, with interest at the rate of seven per cent per annum, payable semi-annually. Both the note and mortgage contained acceleration clauses operative upon default in the payment of any installment of interest. This appeal is taken from the decree of foreclosure.

The installment of interest due on March 1, 1932, was not paid. On that date Mr. Wright sent the following letter to Mr. Youngs: “I regret very much that I am unable to meet that interest payment due today. I have some three of four deals on hand that look pretty good and if any one goes through I will have the money to pay you. I made one cash sale in January and got enough money to pay the city taxes and the first instalment of county taxes. I got almost nothing out of last year’s valencias and thirty cents per box for the navels this time. So if you can be patient with me I will do the best I can. If you are down in Orange County call around and hoping the next letter will be more substantial. ’ ’ On March 10th Mr. Youngs replied as follows: “We are glad you were able to pay the taxes and hope this spring will

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be better for you and real estate generally. Money is short with us and you have always paid promptly so we counted on it this time too, but will get along and know you will feel badly until it is paid. ’ ’ On April 1st respondents called on appellants. They called again on the 5th of the same month. Their object was to obtain additional security for the unpaid installment of interest. They asked for an order on the packing-house for the money to become due for the sale of the orange crop. Appellants told respondents that an order had been given to a bank for one-half of the proceeds of the crop, and that out of the balance there were bills for irrigating water, fertilizer and labor and materials used in spraying the orange trees that would have to be paid. They offered to give an order for the money remaining after the payment of the first order and the bills above described. Respondents told them to have such an order prepared, send it to them, and they would take it under consideration. Such an order was sent on April 12, 1932. They retained it, but received no money on it. They came again to the home of appellants on April 17th and informed them that the “crop order that you have sent us is worthless; we can’t accept it”. A fourth conference was held on April 19th, and the action to foreclose the mortgage was instituted on April 20th.