Equitable Sav. & Loan Ass'n v. Bowes

• Decision Date: 11 September 1912
• Citation: 70 Wash. 169,126 P. 436
• Court: Washington Supreme Court
• Parties: EQUITABLE SAVINGS & LOAN ASS'N v. BOWES et al.

126 P. 436

70 Wash. 169

EQUITABLE SAVINGS & LOAN ASS'N v. BOWES et al.

Supreme Court of Washington

September 11, 1912

Department 1. Appeal from Superior Court, King County; King Dykeman Judge.

Action by the Equitable Savings & Loan Association against William Bowes and another. From a judgment for plaintiff, defendants appeal. Modified and affirmed.

Chas E. McAvoy, for appellants.

Peters & Powell, of Seattle, for respondent.

CROW J.

This action was commenced by Equitable Savings & Loan Association a corporation, against Andrew R. Cox, William Bowes, Hugh Carlin, and their respective wives, to foreclose a real estate mortgage. The only issue was whether $726.88 tendered by defendants, or $893.19, with attorney's fees and costs, demanded by plaintiff, was the sum remaining unpaid. The trial court entered findings and a decree for the full amount claimed by the plaintiff. The defendants Bowes and wife and Carlin and wife have appealed.

The note and mortgage were executed on July 27, 1906, by Andrew R. Cox and Sarah Cox, his wife, then the owners of the real estate in the mortgage described. Material portions of the note read as follows: 'For value received, I * * * promise to pay * * * to the order of the Equitable Savings & Loan Association * * * the sum of twenty hundred twenty-five and sixty-hundredths dollars ($2,025.60) in one hundred twenty equal monthly installments of sixteen and eighty-eight hundredths dollars ($16.88); * * * the same being as and for a payment on account of the principal sum of a loan of twelve hundred dollars ($1,200.00) obtained from said association, and the proportion of eight hundred twenty-five and sixty-hundredths dollars ($825.60), interest thereon, which may have accrued on the balance of said principal sum remaining unpaid at the date of the last installment payment, said sum of eight hundred twenty-five and sixty-hundredths dollars ($825.60) being total interest for said period of one hundred twenty months upon said principal sum calculated upon unpaid monthly balances. If default shall be made in the payment of any of the aforesaid installments of principal and interest upon the day the same becomes due and payable, all of the remaining unpaid installments of principal, and interest accrued to date, provided for in this obligation, shall at once become due and payable at the option of the Board of Directors of said Equitable Savings & Loan Association. * * * After twenty-four months from date and after twenty-four monthly installments have been paid, this note may be paid in full by paying balance of the principal and interest accrued to date of payment; or, additional payments of any multiple of the monthly installment, or multiples of $100.00 may be made, interest ceasing on any sums so paid.' On November 23, 1906, Cox and wife conveyed the real estate to the appellants Bowes and Carlin, subject to the mortgage lien. Forty-eight installments, to July 20, 1910, inclusive, were paid in accordance with the terms of the note. On August 17, 1910, there days before the next installment matured, appellants tendered $726.88 in full satisfaction of the remainder of the debt, and demanded a release of the mortgage. The tender was refused. Appellants then made default and respondent foreclosed.

There is no dispute as to the facts. The only question is the construction of the contract. We had the same form of note before us in Equitable Savings & Loan Association v Barnes, 124 P. 118. It was contended and proven by the makers of that note that they had been defrauded by the payee into the belief that they were to pay a little less than 7 per cent. per annum for the use of the money loaned, that they did not understand the true import of the note, and that it would...