Burnstein v. Simmonds

STURTEVANT, J.

The plaintiffs commenced an action against the defendants to recover on a promissory note. The defendants appeared and answered and also filed a cross-complaint. The cross-complaint was answered and a trial was had in the trial court before the court sitting without a jury. The trial court made findings responsive to each and all of the issues and ordered judgment for the plaintiffs. From a judgment entered thereon the defendants have appealed and have brought up a bill of exceptions.

[698]

The defendants contend that on the findings as made the judgment should have been in their favor. That contention is based on facts which we will proceed to recite.

On the twenty-eighth day of November, 1917, Vernon Cruikshank delivered to John W. Sharpe his promissory note in the sum of $6,000, due ninety days thereafter, with interest at eight per cent, and pledged as security for the payment thereof 5,000 shares of the capital stock of the Tungsten Mines Company. Said note was indorsed on the reverse side by John W. Sharpe, Frank Simmonds, B. J. Genereux, and Elmer Cole, and thereafter it was delivered to D. W. Glenn together with the collateral security. On December 6, 1920, that note had not been paid and the parties interested entered into such agreements that on said date a promissory note was signed which was as follows:

“No....... Corona, California, December 6th, 1920.

“On or before 3 years after date for value received, I, we or either of us promise to pay to D. W. Glenn or order, at The First National Bank of Corona, California, six thousand and no/100 Dollars, with interest, payable quarterly, at the rate of seven per cent per annum from date until paid, and attorney’s fees of ten per cent on the amount then unpaid, if suit be commenced or other proceedings taken to enforce the payment of this note.

“$6,000.00 balance prin.

“Should the interest not be paid when due, it shall be compounded monthly thereafter, and bear the same rate of interest as- the principal, and thereafter the whole sum of principal and interest shall become immediately due and payable at the option of the holder of this note. Principal and interest payable in gold coin of the United States of America of the present standard. The makers and endorsers of this note hereby waive diligence, demand, protest and notice.