Southern California Music Co. v. Skinner

SHAW, J.

Action to recover a money judgment. The complaint alleges a sale by plaintiff to defendant of a piano for the sum of $405; that on July 15, 1909, defendant executed and delivered to plaintiff his promissory note and agreement in payment therefor, a copy of which, it is alleged, is attached to the complaint; that no part of said sum of $405, other than the sum of $25, has been paid; that defendant has defaulted in his payments as provided in the agree

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ment, and plaintiff has declared the balance of said stun due, no part of which balance has been paid. It is further alleged that by the terms of the note defendant agreed that should suit be brought to enforce the payment thereof, ten per cent thereof should be added to any judgment rendered thereon as attorneys’ fees in said action. Following the complaint, as appears from the record, is a promissory note as follows:

“380.00. Los Angeles, Cal., July 15, 1909.

“Forty-eight months after date, for value received, I promise to pay to the order of Southern California Music Co. at their office in Los Angeles, California, Three Hundred and Eighty Dollars in lawful money of the United States, with interest at the rate of six per cent per annum until paid. Should suit be brought to enforce the payment of this note it is agreed that ten per cent be added for attorney’s fees.

“(Signed) M. W. SKINNER.”

Following this, as shown by the record, is an agreement signed by defendant, by the terms of which he agreed to pay plaintiff the sum of $405 for the piano in the following manner, to wit: $25 cash on delivery of the instrument, and the balance in installments of $8 per month, payable on the fifteenth day of each month. It is further provided that in case defendant fails to pay either of the monthly installments when due, plaintiff may rescind the contract and take possession of the piano, or if such monthly payment remains due and unpaid for a period of sixty days, plaintiff may declare the whole sum still unpaid under the contract due and payable. Defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and also upon the ground that the same was uncertain in that it could not be determined therefrom whether plaintiff’s cause of action was based upon the promissory note, or upon the alleged agreement, or upon both. The demurrer was submitted to the court without argument and overruled, and upon the trial of the case the court gave plaintiff judgment for the sum of $380 and interest thereon, together with $38 attorneys’ fees, in accordance with the provision of the promissory note. Defendant appeals from this judgment.