Petree v. Harris

APPEAL from Sixth Judicial District, Sacramento County.

In a loan transaction Petree gave one William Yule his note for three hundred dollars, dated November 26, 1859, and payable to Yule’s order six months after date, with interest at three per cent per month and to be compounded. The note was secured by mortgage on real estate. On the 1st of November, 1861, an accounting between the parties revealed four hundred and fifty dollars as due on the note, and this amount Petree would have had run on therefrom as principal, provided Yule would take two per cent per month interest instead of three. Yule declined, but Harris, who now comes into the transaction, was willing to loan money at two per cent, and so had Yule assign the note and mortgage to him. On the 31st of January, 1863, there was due on the note four hundred and fifty-nine dollars, and Petree, in his complaint, alleged that he then tendered to Harris that amount, - and one dollar in addition to defray the expense of satisfying the mortgage; but Harris rejected the tender. The same tender was made on the 2d of May following and again was rejected. Petree then began suit to compel Harris to satisfy the mortgage, and Harris began a counter-suit for nine hundred and forty dollars and for a foreclosure, and attorneys’ fees therein. Numerous receipts in writing for installments of interest at two per cent paid in full were produced by the plaintiff at the trial, but evidence on the part of Harris was to the point of there being an understanding that the reduction of interest was to depend upon promptness in payment as the installments became due.