Trompeter & Co. v. Monaco

MURPHY (E. P.), J. pro tem. Plaintiff and respondent herein brought suit to foreclose two street improvement bonds issued under the Street Improvement Act of 1911. The bonds covered two parcels of real property owned by Emma Monaco. Prom a judgment rendered in favor of plaintiff and respondent, defendants Emma Monaco and Arm and Monaco prosecute this appeal upon a written stipulation of facts. Summarized, these facts are as follows:

[669]Respondent is the owner and holder of two street improvement bonds, Nos. 19 and 20 of Series 3 issued by the city of Los Angeles under the Street Improvement Bond Act of 1911. Two parcels of real property owned by appellant Emma Monaco are covered by the bonds in question. The bonds were issued on November 14, 1924, and matured on January 2, 1935. On July 11, 1935, appellant Emma Monaco paid all of the accrued interest on the bonds up to the time of maturity. The unpaid balance of principal amounted to $140.23 on bond No. 19 and $140.02 on bond No. 20. Appellant paid no interest accruing after maturity. In addition to the amounts heretofore mentioned, respondent claims interest on each bond of approximately $78 and a penalty of $104, as provided for in the act under which the bonds were issued.

There are no provisions in the bonds which require the payment of any interest after maturity, although section 76a of the Bond Act requires the court in the foreclosure action to award interest “up to the time of judgment.’’ In addition section 3289 of the Civil Code provides that: “Any legal rate of interest stipulated by a contract remains chargeable after a breach thereof, as before, ...” On one or more occasions between the 11th of July, 1935, and the 28th of February, 1937, appellants herein offered to pay to the city treasurer of Los Angeles interest on the bonds accruing after maturity, which interest payments were refused by the city treasurer.

The street bonds involved in this proceeding matured on the 2d of January, 1935. The last payment of principal on each of the bonds due on that date was not paid. For more than four years thereafter appellants remained in default on these payments. Respondent’s action was begun on the 17th of January, 1940, at which time appellants were still in default.

Appellant argues that by the terms of section 76a of the Street Improvement Act of 1911, an action to foreclose bonds issued pursuant to said act must be commenced within four years after the due date of the last installment.