E. K. Wood Lumber Co. v. Roberts

GIBSON (Lilburn), J. pro tem.* On January 6, 1949, cross-complainant Roberts was the owner of real property in Oakland upon which he was erecting a building. To assist him in financing construction thereof, he had theretofore borrowed in excess of $30,000 from cross-defendant Bank of America National Trust and Savings Association, and evidenced the same by a promissory note and secured it by a deed of trust on the property. He found he needed more money to complete the building and applied to the bank therefor. After negotiating with the officials of the latter for a while, the bank agreed to lend him the additional sum of $42,500, and pursuant thereto, on the date aforesaid, he made and executed a promissory note in words and figures as follows, to wit:

“42,500.00—Oakland, Calif., January 7, 1949.

‘‘ Six months after date hereof, for value received, I promise to pay in lawful money of the United States of America, to the order of the Bank of America National Trust & Savings Association at its Piedmont Avenue Branch in this city Forty-two Thousand Five Hundred and no/100ths Dollars with interest in lawful money from date thereof, at the rate of 5% per annum until paid, payable six months from date, and if said interest is not paid as it becomes due, it is to be added to the principal and becomes a part thereof, and thereafter bear interest at the same rate, and in case said interest, or any part thereof, be not paid within 10 days after the same becomes due and payable, the whole of said principal sum shall forthwith become due and payable at the option of the holder of this note.

“Deed of trust dated February 20, 1947, executed by John Stewart Roberts and recorded February 27, 1947, in Book 5061 of Official Records, Page 389, Alameda County Records secures the indebtedness evidenced by the note.

John Stewart Roberts.”

[271]About three weeks after the maturity of the note, nothing having been paid thereon, the trustee under said deed of trust, after notice of default, noticed said property for sale. Whereupon in this action, originally begun by other parties, appellant by cross-complaint against the respondents Bank and Corporation of America, trustee in said deed of trust, sought to enjoin said sale and to have said note reformed so oas to have it read and mean other than it did by its express terms. His position is succinctly set forth in Paragraphs 5, 6, and 7 of the first count of the amended cross-complaint and in count 3 thereof. Said paragraphs referred to are as follows: