183 P. 786 | Wyo. | 1919
This is an action brought by the defendant in error, Robert S. Douglas, against the plaintiff, in error, PI. E. Wright & Company, to enjoin the foreclosure by notice and sale of a certain chattel mortgage given by Douglas to one Frank W. Keeler. A temporary injunction was issued, and on final hearing was made perpetual. Wright & Company bring error.
1. That on July 10, 1917, he executed and delivered to Frank W. Keeler, his two promissory notes, one for $5,-000.00, and one for $4,259.18, each due six months after date, with interest at 5% per annum from date until paid, and payable at the option of the holder at the Banking House of Keeler Brothers, in Denver, Colorado, or at the National Bank of Commerce, in the City and State of New York.
2. -That to secure the payment of said notes he executed and delivered the mortgage in question.
3. That before the maturity of said notes he caused to be tendered the full amount due on said notes, namely, the sum of $9,259.18, as principal, and the further sum of $236.62, in all the sum of $9,495.80, at the Banking Blouse of Keeler Brothers, at Denver, Colorado, the place selected by the holder of said notes, where payment should be made, which said Keeler Brothers refused to accept, to surrender said notes and satisfy and cancel the mortgage securing their payment.
4. That thereafter, and on February 18, 1918, he again caused to be tendered to H. E. Wright & Company, the defendants, the sum of $9,495.80 and the further sum of $120.37, which latter amount defendant claimed as interest since the 'maturity of the notes, which tender so made defendants refused to accept.
5. That notwithstanding said tender as aforesaid, defendant wrongfully began foreclosure proceedings, and have advertised a “Notice of Chattel Mortgage Foreclosure”, giving notice that on March 15, 19118, it would sell at public auction all of the cattle described in said mortgage, (A copy of the notice is set out in the petition, and states:)
“The first publication of this notice shall be on Thursday, to-wit: the 21st day of February, A. D. 1918,” and signed,
“IT. E. Wright & Company, “Denver, Colorado.
‘Present Holder of Mortgage.”
7. That he stands ready and willing to pay the amount due on said notes on January 10, 1918, and as tendered, and to do all things which he offered to do, and tendered, at any time prior to the bringing of this action.
For answer, defendant pleaded in substance, that the notes by their terms drew 5% interest per annum from date until maturity; and that by the terms of the mortgage the notes should draw interest at 12% per annum after maturity until paid. Denied that plaintiff tendered before the maturity of the notes the full amount due thereon at the Banking House of Keeler Brothers; denied that plaintiff at any other time tendered the full amount due on said notes at any place. Denied that plaintiff tendered or caused to be tendered the full amount due on said notes or that he caused to be tendered at any time the sum of $9,495.80; but state that about the date of maturity of said notes plaintiff tendered in full payment of the principal and interest thereon at the Banking House of Keeler Brothers at Denver, Colorado, a draft drawn by some bank in Nebraska on a bank in Omaha for $9,495.80. That by the terms of said notes they were payable in gold coin. Denied that plaintiff, at any time, tendered or caused to be tendered, the full amount due on said notes, in such gold coin. Answering paragraph 4 of the petition, defendant admitted each and every allegation therein contained; and further alleged that said notes contain an agreement to pay 15% additional as an attorney’s fee if placed in the hands of an attorney or collected by an attorney, with or without suit; that prior to the tender mentioned' in paragraph 4 of the petition, defendant had placed said notes in the hands of its attorney for collection, that said attorney had undertaken the collection of said notes and had caused the “Notice of Chattel Mortgage Foreclosure”, set out in paragraph 5 of the petition, to be published as alleged in said paragraph 5. Answering paragraph 5 of the petition, defendant admitted each and every allegation therein con
Defendant filed a motion for judgment on the pleadings on the ground that new matter constituting a complete defense was pleaded in its answer, to which no reply was filed. The motion was denied, and'that ruling is assigned as error. What is claimed to be new matter is stated in the motion as follows:
“That as set forth in paragraph 3 of the answer, the notes secured by the chattel mortgage described in the petition were and are, by their terms, payable in gold coin of the United States of America, and that as set forth in said answer, the plaintiff did not pay, and did not offer to pay in such gold coin at, or prior to the maturity of said notes, the amount due thereon; that as set forth in paragraph 4 of the answer, the plaintiff did not, subsequent to the maturity of said notes, tender the full amount due thereon according to the terms thereof, all as set forth in said answer and the exhibits attached thereto, and made a part thereof.”
For the purpose of deciding the correctness of the court’s ruling on the motion, it is necessary to consider the answer to the tender of February 18, 1918', which the answer admits was made as alleged. But defendant denied its sufficiency in amount, alleging that an attorney’s fee was due in addition to the amount tendered. While it is alleged that prior to the tender the notes had been placed in the hands of an attorney, the only action claimed to have been taken by him was the publication of the notice of foreclosure, which the answer alleges was published as stated in the petition. The notice is set out in the petition and shows on its face that it was not published until three days after the tender, and does not purport to have been the act of an attorney. It is signed, “H. E. Wright & Company”, and states, “The First Publication of this notice shall be on Thursday, to-wit: the 21st day of February, A. D. 1918.” In that state of the pleadings we think the motion was properly denied.
Whether or not the defendant was entitled to an attorney’s fee on the notes is the real question to be determined. The
Principal of your notes.$9,259.18
Interest, 5% (184 days). 236.62
Handling charges to New York (25c per
$100) . 23.75
Total.$9,519-55”
It will be observed that the notes were not, by their terms, made payable in New York exchange, nor do they provide for exchange or “Handling Charges to New York”. They were payable at the Banking House of Keeler Brothers i'n Denver, in gold coin. Keeler Brothers were no.t only insisting on prompt payment -but requesting payment before due, and demanded in addition to unauthorized “Handling Charges”, $5.14 more interest than the notes called for. The interest on $9,259.18 at 5% for six months is $231.48, not $236.62. On January 7, 1918, plaintiff caused to be mailed to Keeler Brothers a draft .drawn by the Elgin State Bank
The parties stipulated in writing that on February 18, 1918, plaintiff tendered to FI. E. Wright & Company $9^,-616.17, in gold; that said tender was made in payment of the principal of said notes, $9,259.18; interest from July 10, 1917, to January 10, 1918, $236.62; interest from January 10, 1918, to February 18, 1918, $120.37. That said tender was refused by said Wright & Company, and. the reason given for such refusal was that it could not accept the money or the tender thereof unless there was added thereto an attorney’s fee in the sum of $300.00.
We have thus at length set forth the facts for the purpose' of showing the good faith of plaintiff in an honest desire to pay the amount due on the notes, both at maturity and thereafter. Also to show that Keeler Brothers and the defendant were at all times demanding more than the notes and mortgage called for. We have already referred to the item of $5.14; and the 12% interest after maturity is not provided for either in the notes or mortgage. The only place where 12% is mentioned is in the mortgage where it attempts to
In the case of Graves et al. v. Burch, decided by this court June 3, 1919, 181 Pac. 354, the question of the allowance of attorney’s fees was fully considered and the authorities cited and reviewed. The principles therein announced and the authorities cited are applicable to the facts in this case, and need not be repeated here. By the judgment the defendant was awarded somewhat more than it was rightfully entitled to; but the plaintiff is not here complaining. The court