Nichols v. Asbeck

SLOSS, J.

Action to foreclose a mortgage of real property given by the defendant Asbeck to secure the payment of a promissory note for four hundred dollars, dated May 18, 1910, and payable one year after date. By the note the maker promised to pay to the order of Mary J. Nichols, the plaintiff, “at San Diego, California, $400, with interest at the rate of twelve per cent per annum from date until paid.” Subsequent to the making of the note and mortgage, the mortgagor conveyed the property to I. Isaac Irwin.

The note was not paid, and in May, 1915, this action was commenced against Asbeck and Irwin to foreclose the mortgage. The court gave judgment of foreclosure for the amount of the note, together with interest at the agreed rate, attor

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neys’ fees as specified in the note, and costs. The appeal is on the judgment-roll alone. Among the findings is one that the note was never presented to the defendant Asbeck for payment, nor has any demand for payment ever been made upon him; that prior to the maturity of the note said Asbeck ‘ ‘ deposited with the firm of Irwin and Company, in the City of San Diego, a sum of money sufficient to pay the principal and interest on said note at the date of maturity; that said deposit was made for the purpose of having said funds on hand at the date of maturity of said note, and that the defendant Augustus A. F. Asbeck was able and willing to pay said note at the date of maturity in the city of San Diego, State of California.”

The sole point made by the appellants is that the failure of presentment, coupled with the other facts found,' affords an answer to any demand for interest from the date of maturity, damages, and costs. Section 3130 of the Civil Code (as it read at the time of the transactions here in question), after declaring that demand of payment need not be made upon the principal debtor in a negotiable instrument in order to charge him, went on to say: “But if the instrument is by its terms payable at a specified place, and he is able and willing to pay it there at maturity, such ability and willingness are equivalent to an offer of payment upon his part.” The note in question was made payable “at San Diego, California.” The succeeding section, 3131, provided that presentment for payment, when necessary, must be made as follows: