Gunby v. Ingram

• Decision Date: 25 January 1910
• Citation: 57 Wash. 97,106 P. 495
• Parties: GUNBY v. INGRAM et ux.
• Court: Washington Supreme Court

106 P. 495

57 Wash. 97

GUNBY v. INGRAM et ux.

Supreme Court of Washington

January 25, 1910

Department 2. Appeal from Superior Court, King County; A. W. Frater Judge.

Action by J. C. Gunby against L. P. Ingram and wife. Judgment for plaintiff. Defendants appeal. Reversed and dismissed.

Carkeek & McDonald, for appellants.

Karr &amp Gregory, for respondent.

DUNBAR J.

This is an appeal from a real estate foreclosure judgment. On the 5th day of June, 1907, the appellants executed two promissory notes to Lusetta Newell in the sum of $5,000, which notes were secured by a real estate mortgage on certain property belonging to appellants. One note was duly paid, and the other note of $2,500 remained unpaid. This note provided for maturity of the whole debt in case of nonpayment of contract when due. There was an installment of interest due on the unpaid note on the 5th day of March, 1908. It is claimed by appellants that by agreement with Lusetta Newell they were given until April 1st to pay the interest due March 5th viz., $50. It is the contention of the respondent that there was no agreement to this effect, but that Lusetta Newell simply allowed the interest to remain unpaid without taking any action in the matter. But we are satisfied from an examination of the record that there was an agreement to that effect. However, inasmuch as the appellants did not pay the interest according to the agreement, it seems to be unnecessary to discuss that proposition. On the evening of the 2d day of April appellant L. P. Ingram mailed to Lusetta Newell a check for $50, installment of interest, which it is admitted was received by her on the morning of the 3d day of April. On the 2d day of April Lusetta Newell sold and assigned the note in question to respondent J. C. Gunby, who prepared his complaint in foreclosure and filed the same on the next day, the 3d of April. Lusetta Newell did not apply the check to the payment of the interest due, and in a few days it was sent back to the appellant L. P. Ingram. The appellants were not notified of the assignment of the note to the respondent, excepting constructively by the recording of the assignment and through the service of the complaint. These matters which we have recited were set up in the answer, together with an allegation of tender to the clerk of the court of the $50 due. In July, after the motions and preliminary pleas were made, a supplemental complaint was filed, in which it was alleged that the sum of $2,500 gold coin or principal sum mentioned in the promissory note spoken of before, together with interest thereon, had become due and payable, and still remained unpaid, and relief was asked accordingly.

It was decided by this court in Weinberg v. Naher, 51 Wash 591, 99 P. 736, that an option in a mortgage note to declare the whole debt due for default in payment of interest could not be exercised after lawful tender of an overdue interest installment, and that some affirmative action must be taken by the creditor to announce the election to make due the whole note upon a failure to pay the portion which had become due, and we have decided that the commencement of an action before the tender of the amount due was one way in which such option could be exercised. Much is said in the briefs of respective counsel concerning what was decided in Coman v. Peters, 52 Wash. 574, 100 P. 1002, but in that case the doctrine announced above was substantially declared, and that was the main proposition discussed and decided, viz., that, whether there be words of option of the agreement or not,...