Somerton State Bank v. Maxey

• Decision Date: 12 May 1921
• Docket Number: Civil 1828
• Citation: 197 P. 892,22 Ariz. 365
• Parties: SOMERTON STATE BANK, a Corporation, Appellant, v. J. H. MAXEY and MARY MAXEY, Appellees
• Court: Arizona Supreme Court

197 P. 892

22 Ariz. 365

SOMERTON STATE BANK, a Corporation, Appellant, v. J. H. MAXEY and MARY MAXEY, Appellees

Civil No. 1828

Supreme Court of Arizona

May 12, 1921

APPEAL from a judgment of the Superior Court of the County of Maricopa. F. H. Lyman, Judge. Reversed.

Mr Earl Anderson, for Appellant.

Messrs Alexander, Christy & Baxter, for Appellees.

OPINION

JENCKES, Superior Judge.

On March 28, 1919, the appellee (defendant below) was indebted to appellant (plaintiff below) upon four promissory notes aggregating the principal sum of $4,500, payable at Somerton Yuma county, Arizona, and then long past due. Payment had been demanded many times. Appellee had harvested a cotton crop in Yuma county, which, prior to said date, had been removed by him to Maricopa county to be ginned and marketed. This crop had been ginned and baled, and was on said date in storage at Mesa and at Tempe in Maricopa county. Appellee had theretofore successfully withstood demands for payment of the indebtedness by representing to appellant that he would liquidate it when he sold his cotton. Appellee had on June 13, 1918, given appellant a chattel mortgage upon his said cotton crop to secure other indebtedness owing by him to appellant aggregating the principal sum of $6,000, which said other indebtedness and mortgage were outstanding and long past due on March 28, 1919. The indebtedness of $4,500 was wholly unsecured. On March 28, 1919, appellant sent copies of all the promissory notes and the mortgage to attorneys Hawkins & Anderson at Phoenix, Arizona (the originals being retained at Somerton) with instructions to record the mortgage in Maricopa county and -- "to look into the situation as far as you can at this time and call by phone upon receipt of this letter, and we will determine just what action to take."

This communication was received by Hawkins & Anderson on March 31st, and by phone on that day, upon being informed by them that appellee was negotiating a sale of his cotton, appellant directed Hawkins & Anderson to attach the cotton to secure the $4,500 indebtedness. This they proceeded to do, and brought this action for that purpose on April 2d, at 10 A.M. On April 1st, appellee approached appellant at Somerton for the purpose of arranging for a settlement of the notes through a bank of Yuma, and was informed that the matter was in the hands of Hawkins & Anderson at Phoenix, and that he must settle with them there. Appellee immediately proceeded to Phoenix to settle with Hawkins & Anderson, and about 9 A.M., April 2d, his attorney called upon them for that purpose. Upon learning that the original notes and mortgages were at Somerton, appellee's attorney requested that they be forwarded to Phoenix, together with a release of the chattel mortgage, so that they could be paid upon sale of the cotton by appellee. The notes and mortgage were accordingly sent to the Valley Bank at Phoenix, Arizona, arriving there on April 4th. On that day appellee called at the Valley Bank and tendered the principal, interest, court costs, and the bank's exchange charge. This tender was refused, because it did not include any sum as attorney fees. Appellee declined to pay any attorney fee.

The promissory notes in question each contain the following provision governing the payment of attorney fees:

"Should this note not be paid punctually, and an attorney be employed, the makers and indorsers of this note severally and jointly agree to pay a reasonable sum in addition to the sum then unpaid as attorney's fees. . . . Attorney's fees to be fixed by the judge of the court."

The trial court construed this provision of the notes to mean that an attorney fee accrued only in the event of suit being brought to recover upon the notes, and then held that, as appellee had offered to pay the principal and interest of the notes before this action was filed, the action was unnecessarily brought, and that for such reason appellant was not entitled to recover attorney fees nor any interest upon the principal indebtedness after the fourth day of April, nor any costs accruing thereafter, and rendered judgment in favor of appellant for the principal indebtedness, with interest and costs to April 4th only.

Appellant presents ten assignments of error, comprising two main propositions: (1) That the trial court's construction of the agreement concerning attorney fees was erroneous; and (2) that even if it were correct, appellant was entitled to recover attorney fees and interest and costs subsequent to April 4th, under the evidence as presented by the record.

It is not necessary for us to determine in this case whether or not the trial court's construction of the agreement was erroneous, for even if it were correct the case must be reversed because the judgment is not supported by the court's findings of fact.

The court concluded as a matter of law that appellee's so-called "offers to pay" the principal and interest or the first and second days of April, before the suit was filed, and the tender thereof, with accrued costs on April 4th, subsequent to the filing of the suit, precluded a...