52 Colo. 198 | Colo. | 1911
delivered the opinion of the court:
The plaintiff in error, Alice L. Godsmark, was a niece of Jenny Bennett. On November 3rd, 1902, Mrs. Bennett borrowed of her niece $1,000, for which she gave her promissory note, of which the following is a copy:
“$1,000.00 Steamboat Springs, Colo.,
November 3, 1902.
One year after date, I promise to pay Alice h. Gods-mark or order One Thousand and no/ioo Dollars, with interest at six per cent, per annum from date until due, payable at the office of Milner & Co., Bankers, Steamboat Springs, Colorado. If not paid when due, to bear interest at two per cent, per month until paid.
*200 It is also stipulated that should this note be collected by an attorney (whether by suit or otherwise) ten per cent, shall be allowed the holder as attorney’s fees.
(Signed) Jenney Bennett.””
This note was written on one of the regular forms of Milner & Co., bankers, in which the provision for two per cent, per month interest after due was printed. It is undisputed that interest on this note to November 3, 1904, one year after it matured, at the rate of six per cent, per annum was paid to and accepted by Mrs. Godsmark. Payment of the note was secured by a trust deed upon real estate. In the spring of 1906 Mrs. Bennett fell sick, and died the following June. The estate was left in the hands of Dr. B. B. Jefferson, as executor of her will, Mrs. Godsmark not being remembered therein.
In September, 1906, Mrs. Godsmark filed a claim against the estate on account of this note, for $1450., of which $450. was interest at the rate of twenty-four per cent, a year from November 3, 1904. On June 24, 1907, the probate court of Routt county allowed $1158.35, which includes the principal of the note and interest at the rate of six per cent, from November 3, 1904, to that date, and disallowed all interest in excess of six per cent, per annum. On July 9, 1907, a claim of ten per cent, of this-allowance as an attorney fee was filed. Tire $1158.35 was paid by the executor and accepted by Mrs. Godsmark. But she prayed, was allowed and perfected an appeal to the. Routt county district court from the order disallowing extra interest. Oin July 20, 1907, the county court disallowed the claim for attorney fee. No exception was taken tc> this order and judgment, no appeal was prayed, none was granted and none perfected, although upon the other appeal the whole record relating to both claims was
Two contentions are here for consideration. One is that, if the two per cent, per month interest clause was in fact a part of the contract, Mrs. Godsmark waived her right to recover it by voluntarily accepting interest at the rate of six per cent, a year after the note matured. The other is, that the proofs show and establish that the •two per cent, per month interest clause is not in fact a part of the contract actually entered into between the plaintiff in error and the decedent.
When Mrs. Godsmark accepted the interest on the note at the rate of six per cent, a year, after the paper became due, and permitted the money to be retained by her aunt, that seems to imply that the loan should continue at the original rate of interest, and must have been so understood by Mrs. Bennett. But Mrs. Godsmark not only did this, she thereafter repeatedly stated that she was permitting her aunt to have money at six per cent, per annum when she could get more. This is made clear from the testimony of Mrs. Green and Mrs. Becker, also nieces of Mrs. Bennett.
The note matured in November, 1903; it was in November, 1904, that she accepted interest at the rate of six per cent, to that date. Still later Mrs. Godsmark, writing to her cousin, during the illness of Mrs. Bennett, in 1906, declared that she was letting her aunt have $x,ooo. at six per cent, when she could get ten per cent, a year for it. In May of that year she stated the same thing to another cousin. This shows plainly that there
In Illinois a like provision in a note is treated as penalty, but the application of the doctrine of waiver is there held to be the same. Where a note provides for a certain rate of interest until due, and if not paid when due then to bear interest at the rate of five per cent, per month, and the payee accepted interest at the original rate from time to time, and did not • demand the greater interest until after the death of the maker, it was held that he had waived his right to the greater interest.'—Bradford & Son v. Hoiles, 66 Ill. 517.
If the evidence adduced fails to establish that the higher interest rate was waived by’ the acts of the complainant, it does show that the two per cent, per month interest clause is no part of the contract. The testimony of Mrs. Godsmark discloses that it was not until after the death of Mrs. Bennett that she even knéw that the note contained the clause for greater interest after maturity. It would appear that this testimony alone is suffi
There is much controversy over the testimony offered by -the estate through the witness J. R. Harding, an.attorney, and. admitted in evidence over objection. It was contended by plaintiff in error that, because of the relation of attorney and client existing- between herself and this witness, her communications to him were privileged. The court below held that no such relation did exist and overruled the objection. However, in our view of the case, whatever the fact may be as to the admissibility of this evidence, it did the claimant no harm. There is abundant testimony of a most satisfactory and convincing character, beside that given by Mr. Harding, to support the judgment of the court below. On review of the case we have wholly disregarded that evidence, and are fully persuaded that upon the record, independent of Mr. Harding’s.testimony,, the judgment of the district court should be affirmed. - - Judgment affirmed.