84 Cal. 201 | Cal. | 1890
Defendant appeals from a judgment and order denying a new trial in an action to foreclose a mortgage on real estate.
The defendant, on the 19th of March, 1880, being indebted to the plaintiff corporation in the sum of $5,135, for money loaned to and expended for him, gave to
The crop of wheat described in the chattel mortgage was by the defendant harvested prior to October, 1880, and placed in a warehouse at Livermore, and receipts therefor obtained in the name of the plaintiff, which were delivered to it. On a sale of this wheat by the plaintiff on July 1,1881, it realized the sum of $4,061,99. This amount the plaintiff applied to the payment of defendant’s indebtedness of $3,407.06, which had, as above shown, accrued after the making of the note and mortgages, and the overplus was applied upon the said note.
Defendant contends that the whole amount realized from the wheat should have been applied upon the note. This raises the principal question, upon the solution of which the case depends.
Plaintiff, in its complaint, seeks to foreclose the mortgage upon the real estate, and admits therein that a certain amount has been paid upon the note, which is
Thus we perceive that the main issue tendered is, whether the note was paid. To meet the affirmative matter set up in defendant’s answer, the plaintiff interposed a replication which traverses such new matter, and, among other things, avers that the proceeds of the sale of the hay and wheat were applied to the payment of the loans and advances other than those included in the note, according to the agreement' of the parties. This reply was unnecessary, and has no place in our system of pleading, because the Code of Civil Procedure provides, in section 462, that “ the statement of any new matter in the answer, in avoidance or constituting a defense or counterclaim, must, on the trial, be deemed controverted by the opposite party.” Thus in Curtiss v. Sprague, 49 Cal. 301, this court, with respect to the same provision in the Practice Act, said: “ The counterclaim was barred by the statute of limitations, and, under the provisions of the Practice Act, the plaintiff must be considered to have pleaded the statute by way of replication to the counterclaim.” So in the present case, the plaintiff must be deemed to have pleaded the verbal agreement between itself and defendant, -whereby the grain covered by the chattel mortgage, when the same was harvested and delivered to it, should be held as security for the advances made and to be made to and for the defendant, and the proceeds of the sale of the grain should be applied, first to the payment of such advances, and the remainder, if any, to the payment of the note. And it
. Although the two mortgages are separate and distinct from each other, they were given for the sole purpose of securing the same note, a copy of which is set forth in each of them. This is found asa fact by the court, and is not disputed; and it is also found that at or about the time the note and mortgages were made, and at different times until July 1, 1881, “ the defendant orally, but not in writing, promised and agreed, in consideration of said advances and loans being made and to be made from time to time by plaintiff to defendant, that the plaintiff should have and hold, as fast as the same could be delivered, all produce raised by the defendant, including the wdieat mentioned in defendant’s answer, as security for the payment of all moneys so loaned, paid out, and advanced by plaintiff to defendant in excess of the note described in the complaint,” and that all the proceeds of the sale of such produce should be applied by plaintiff to the payment of moneys advanced, and the remainder, if any, to the payment of the note.
The evidence in support of the finding as to the verbal agreement is not as satisfactory as it might be, but the testimony of the defendant to the contrary presents such a conflict as to preclude us, under the settled rule in this regard, from disturbing it.
But it is earnestly urged by counsel for appellant that even if the evidence relevant to the issue involving the verbal agreement was properly received, and is sufficient to support the finding respecting it, such an agreement in effect created a chattel mortgage, contrary to section 2922 of the Civil Code, which provides that “ a mortgage can be created, renewed, or extended only by writing executed with the formalities required in the case of a grant of real property.”
A complete answer to this is, the finding shows the verbal agreement related to the grain when it should be
But we think it was perfectly competent for them by agreement to divert the grain from the satisfaction of the debt for which it was first agreed in the chattel mortgage it should be security, and convert it into a pledge to secure the payment of defendant’s other and subsequent indebtedness. This, it is true, affected the written mortgage, but instead of it being modified or changed by such verbal agreement, it was extinguished when such agreement was executed.
The mortgage on the real estate provides that, in the event of a suit being brought to foreclose the mortgage, an attorney’s fee not exceeding five hundred dollars, and ten per cent upon the amount found due to plaintiff on the note' and mortgage, shall be allowed. At the trial the counsel for the respective parties agreed to leave the amount of such fee to the court. And the court thereupon found and allowed one thousand dollars as a reasonable attorney’s fee. Defendant’s counsel now claim,— 1. That no attorney’s fee should be allowed in view of an offer they made to permit judgment to pass against the defendant for the amount due upon the note after deducting the payments claimed to have been made thereon; and 2. That the amount allowed is unreasonable and excessive. The offer referred to was made upon the theory that plaintiff could not prove and recover upon the verbal agreement above mentioned, which, as we have seen, it was properly permitted to do.
In view of the record here, we are constrained to say that the amount fixed by the court appears to be too great, and that six hundred dollars would, in our opinion, be a fair and reasonable compensation for plaintiff’s counsel. The stipulation in the mortgage is not controlling, as the law provides: “In all cases of foreclosure
We therefore advise that the judgment be modified by deducting four hundred dollars from the sum allowed therein as an attorney’s fee, and as thus modified, it, and the order denying a new trial, he affirmed.
Vanclief, C., and Belcher, C. C., concurred.
The Court. — For the reasons given in the foregoing opinion, the judgment is modified by deducting four hundred dollars from the sum allowed therein as an attorney’s fee, and as thus modified, it, and the order denying a new trial, are affirmed.
Hearing in Bank denied.