Hellier v. Russell

GRAY, C.

Defendants appeal from a judgment in plaintiff’s favor. This action was brought to foreclose a mortgage securing a note reading as follows:—

“San Francisco, November 24, 1891. On the 24th day of November, 1892, for value received, we jointly and severally, promise to pay to the order of Michael J. Beilley the sum of one thousand dollars, with interest monthly in advance, at the rate of one per cent per month, and to compound monthly if not so paid,” etc.

The complaint in the action was filed and suit begun on November 13, 1896; and in said complaint it is alleged that the defendants have not, “nor has either of them, paid the principal sum of $1,000 mentioned in said promissory note, on any part of said sum, but have paid the interest thereon to the 24th day of November, 1896, and said sum of $1,000, IT. S. gold coin, with interest from November 24, 1896, is now due, owing and unpaid from said defendants to this plaintiff.”

On demurrer to the complaint the point was made, as it is again made by appellant here, that the above.statement of facts shows that the action was prematurely brought; that interest having been paid in advance to a day subsequent to the date of the filing of the complaint, nothing was due on the note until the date to which interest was so paid.

By the terms of the note the principal sum of one thousand

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dollars fell due on November 24, 1892, almost four years before the action was begun. The defendant agreed to pay the principal on that date, and this agreement was not waived or in any way affected by the acceptance of interest in advance from month to month, in accordance with the further agreement contained in the note. There is no merit in this contention of appellant.

The mortgage foreclosed provided for counsel fees “at the rate of seven per cent upon the amount which may be found to be due for principal and interest.” The court found $1,296 to be due as principal and interest at the date of the ■ findings, and, without taking evidence on the question, fixed the attorney’s fee at ninety dollars, which was a little less than the mortgage provided for.