10 Utah 91 | Utah | 1894
This is an action to foreclose a mortgage on real estate/ given as security for the payment of a note. As appears from the record, John Q. Leavitt and Cynthia Leavitt, his wife, made and delivered to the plaintiff, on the 13th of April, 1889, a promissory note for $1,200, due in six months after date. This note was, by its terms, payable in United States gold coin, at the First National Bank of Ogden, Utah, and contained a provision for 10 per cent, additional, for collection, in case the note was not paid at maturity. The note was secured by mortgage on real estate, and the mortgage was placed on record. After-wards, on August 13, 1889, Fred J. Keisel purchased the land, subject to the mortgage, but had no opportunity to examine the note itself; and the copy of the note, as it appeared from the record of the mortgage, designated no place of payment, nor did it contain the clause for payment in United States gold coin, or for the 10 per cent, additional for cost of collection. It also appears that the payee of the note was absent from the territory at the time of maturity, and until suit was brought. Keisel was able' and ready to pay the note at maturity, and, it appears, used reasonable diligence to ascertain the where-abouts of the payee and the note, but was unable to do so. About six months after maturity he went to the bank, taking with him $1,272, amount of the principal and
The first material question to be determined is whether under the circumstances of this case, the defendants, as is contended by their counsel, were excused from making a tender of the money at maturity, and, therefore, exempt from the payment of interest after maturity, and from costs of collection. The note was, by its terms, payable at the First National Bank of Ogden, and the makers must be held to have knowledge of the contents of the instrument. The place of payment was a matter of arrangement between the makers and payee for their mutual accommodation. The payee did not agree to have the note at the bank on the date of maturity, but simply that it should be payable there. Hence the mere failure to present it for payment there on the date of maturity did not exonerate the makers from their promise to pay according to the terms of the note. Nor would it prevent the payee from recovering his interest and costs, in the absence of a readiness on the part of the makers, at the time and place appointed, to pay the note. If on or before the day of maturity the makers would have deposited the money with the bank for the payment of the note in full on presentation, or if, on the day of maturity, they had called at the bank, and made a valid tender of the money, and demanded the note, then such deposit or tender, if it had been kept good, would have prevented the payee from recovering interest after maturity, as well as costs of suit. There being no such deposit or tender,
Counsel for respondent insists that defendant Keisel, who purchased tbe land, subject to the mortgage given in security for tbe payment of tbe note, never having seen tbe note itself until about tbe time suit was brought, is only bound by tbe terms of tbe note as it appeared of record. Conceding that Keisel was ready, able, and willing to pay on tbe day of maturity, and that be made diligent inquiry, and put forth all reasonable efforts to ascertain tbe whereabouts of tbe payee and of the note, and considering tbe fact that tbe description of tbe note in tbe mortgage contained no place of payment, still tbe position insisted upon cannot be maintained, because, being unable to find tbe payee, and not knowing tbe place of payment, it was bis duty, in order to stop interest and avoid costs, to make a tender at the places of business or residences of tbe makers. This follows from a provision •of our statute found in section 2851, Comp. Laws 1888, which reads: “A negotiable instrument which does not specify a place of payment, is payable at tbe residence or place of business of the maker, or wherever be may be found.'” It is clear that tbe efforts which Keisel made to pay tbe note at maturity, though made in good faith, were not sufficient to excuse him from making a tender to tbe makers in the absence of tbe payee from the territory, .and to release him from bis liability, under tbe terms of tbe contract, as to tbe interest and cost of collection. It is not deemed necessary to pass on any other question raised in tbe record. The judgment is reversed, and tbe •cause remanded, witb directions to the court below to so
