Briggs v. Briggs

MOORE, P. J. Appellant is payee and respondent is the maker of a promissory note given pursuant to a property settlement between them. The note provides for monthly payments by the maker and gives the payee the right to accelerate the payment of the unpaid balance due if the maker [319]should fail to make an installment payment within 90 days after its due date.

Respondent made five monthly payments, then failed to make the next payment which became due December 15, 1950, and also the three succeeding payments. On March 19, 1951, appellant gave notice of her intention to declare a default in the payment of installments and demanded payment of the balance due. Respondent refused to pay but tendered all the past due installments. Such tender was refused.

Appellant commenced this action to collect on the instrument. Respondent answered and on the day of the trial, with the permission of the court, filed a “supplement to fifth separate defense of defendant. ’ ’ Judgment was for respondent based on his fifth separate defense, and the findings thereon are substantially as follows: that two properties were conveyed to appellant in the property settlement including the home; that both were covered with fire insurance and besides, the home was covered by a policy of public liability insurance; that at the time of the conveyance to appellant, the unearned premiums on such policies aggregated $103.35 which by the settlement became respondent’s property; that such sum was a valid offset against the $90 due appellant by Mr. Briggs on December 15, 1950, leaving a balance in her hands to the credit of respondent in the sum of $13.35; that in January, 1951, at a time when appellant acknowledged that the $90 cheek due and payable on December 15, 1950, had not been delivered, and when she had not been given notice of respondent’s default on the last mentioned day, she caused her agent to transmit to respondent her check for $36.81 in payment of a portion of respondent’s refund on one of the insurance policies; that respondent and appellant informed the latter’s agent that $58.70 and $7.84 were due upon the refunds of other policies and respondent requested same to be forwarded to him which had not been done.

Inasmuch as the reviewing court is bound by the rule that all conflicts must be resolved in favor of respondent and all legitimate and reasonable inferences be indulged to uphold the conclusions of the trial court (Estate of Bristol, 23 Cal.2d 221, 223 [143 P.2d 689]), the judgment herein is secure against the attack of insufficiency of the evidence if there is substantial evidence to support the findings.