*1 Dist., 45089. Sеcond Div. No. Four. July [Civ. 1975.] NOYES, WILLIAM Plaintiff and v. Respondent, RESOURCES, INC., HABITATION Defendant and Appellant. *2 Counsel & S. Monroe and B. Anderson for William
Trope Trope, Stephen Defendant and Appellant. Nelson, & Jr.,
Valensi Rose and Lawrence F. for Plaintiff Respon- dent.
Opinion KINGSLEY, J. for breach Plaintiff sued of a contract employment. The case was settled and a $35,000, $1,000 settlement required pay plaintiff payable 1974; 1974; $4,000 March on or before or before month, $1,500 month, of each on the fifth commencing day payable per 1974. provided judgment expressly unless essence; and waived interest execution time was of stayed *3 and interest defaulted, could issue in which case execution defendant 8, 1974, as of the balance from on would accrue unpaid a not carried The also contained date of default. provision stipulation and Valensi Rose “(Plaintiff into the hereby appoints reаding: judgment and/or in fact of collecting any for as his enforcing attorneys to the a above.)” of the checks in subsequent letter By payment to extend and attorneys agreed judgment, plaintiff’s stipulation installments, in from date for the April, beginning monthly payment each month. fifth to the fifteenth day check, a was made cashier’s plaintiff’s February payment that could in that form so
counsel having requested payment plaintiff made, three The March was secure without delay. pаyment proceeds late, drawn third on a Florida bank. a check a Difficulty days party on on it.1 and was encountered in Relying ultimately collecting delay 23, 1974, counsel, advised counsel March those problems, plaintiff’s to be made futurе defendant that they require demand, defendant’s that certified check. either in cash or Ignoring counsel, 15, 1974, hours, an uncertified tendered after banking April check, The tender was third a Florida bank. drawn a again party default, and was a rеfused ultimately sought claiming plaintiff, 15, 1974.2 the balance as of a writ of execution for April unpaid granted order; we affirm.3 Defendant from that has appealed record, both behalf of declarations on extensive containing Thе issue the case. to the facts in no shows significant dispute parties, bank in Florida to the drawee 1The not honored when it was first presented check was necessitated, in further and expense was resulting delay and a second presentment in the March in the funds involved payment. possession plaintiff a writ of secured plaintiff on the terms of 2Relying defendant’s because of objections by an ex Apparently, execution on parte application. counsel, contended they made and Defense counsel a formal motion was granted. 28, 1974, motion; was heard on May received the matter ultimately had not notice in in orders favor of plaintiff. resulting . defendant’s motion for a writ and on 3The wаs on motion 28th May hearing plaintiff’s motions favor of writ. The trial court ruled on both plaintiff. to recall the earlier recall and his motion to refers to the order denying notice appeal by here, the notice as that we should trеat in his brief the writ. Plaintiff agrees, quash 1(a), Rules of rule California Pursuant to both of the 28th orders. May applying Court, we so treat it. court, court, to the the tender of the trial and to this is whether presented out-of-town check on 15th and satisfied the was timely third-party, We that the trial court was correct in conclude that it not. holding
While we have found no cases with the dealing creditor, creditor, demand from contract distinguished cash, and no of such cases with an advance notice dealing expressly demand, we conclude that the cases and statutes routine dealing commercial transactions are here. equally applicable *4 law,
At common a debtor was to a debt in actual required pay legal tender v. 41 Cal. normal (1871) 420) (Englander Rogers though today’s business has the relaxed rule to allow of debt practice by check. v. Title Ins. Co. 578 (1962) 199 (Mefford. Security Cal.App.2d [18 But, the 877].) of a tender check debtor be Cal.Rptr. although may creditor who not be does wish to check must good, either paid “[a] refuse Cal.Jur.2d, to to or return it the debtor in due time” (38 accept 20, 264), even it is the (Rose § if tender of a check. Payment, p. personal v. Hecht 94 (1949) 665 P.2d v. 347]; Smith Lobb Cal.App.2d [211 33 (1917) 790 P. 1026].) If creditor to mode Cal.App. objects [166 tender, it must on the be that there is no lawful offer of ground money. v. (1969) West 271 507].) 508 (Layton Cal.App.2d Cal.Rptr. [76 The two which statutes control the time within which the to objection a tender must be made are Code 2076 of Civil Procedure sеction Civil Code section 1501.
Civil Code of an section 1501 reads: “All to mode offer objections creditor has an to state at the time performance, opportunity offer, to the and which could be then obviated making persоn him, creditor, waived are if (Italics added.) not then stated.”
Code of Civil Procedure to section 2076 reads: “The whom a person must, time, tender is made at the he have to may specify any objection instrument, or he to or must deemed hаve money, property, it; waived ...”
Both code sections refer to at the to a tender making objection time of the tender itself.
914 allow who is to a debtor of these two code sections so demands his to what his creditor and аble to debt know willing pay wishes, (Thomassen he make a tender. that the debtor if conforming may, Still v. Plaza 297]; 250 350 (1967) v. Carr Cal.Rptr. Cal.App.2d [58 414].) 21 378 Marina (1971) Cal.Rptr. Commercial Corp. Cal.App.3d [98 a tender not to remain silent rule does an offeree regаrding permit Fence (Riverside later the offeror hidden objections. surprise Further, 536].) 672 v. 273 Co. Novak (1969) Cal.Rptr. Cal.App.2d [78 obviated to must be the tender being objection capable 656].) (Hohener v. (1963) debtor. Gauss Cal.Rptr. Cal.App.2d [34 that, waited It clear had the creditor in the instance present Code tendered his until check was before objection, actually making Civil would have Procedure section 2076 objection, permitted fact, creditor, however, would have beеn would have it. required tender debtor time within which to make his required give ample As the here came three conform to the creditor’s instructions. objection have weeks tender was and as creditor did necessary notice demand in satisfaction of the the advance cash given behind the to have been sufficient to fulfill the purpose appear *5 statute. of interest can find which had case we in California language only One Belcher v. 615 P.2d
is Williams (1957) Cal.App.2d [311 861]. for an escrow there was whether letters of credit issues deposit many A for bank tender of funds. constituted representative proper the letters cash, and it was found that testified that it treated them like officer, the escrow credit “were 622): by agent, (p. accepted appellants’ considered, would not be so without or notice that they they [so] question be in ...” (Italics added.) must deemed to be compliance. is, tender would that advance notice
It demanding specific appear for, sections. code not by although expressly provided permitted to make concern is to allow the debtor time conforming real ample at the if The code tender he so chooses. object recognizes in tender; an time of is no doubt that made there sufficiently objection and valid. advance is also contemplated equally because it was in conflict that the notice was invalid Defendant arguеs in with and conflict basic prior practice. agreement can in record no such without merit. We find this agreement. argument and on defendant The clause of quoted stipulation previously relies, not does amount to such an assures merely agreement; that if a an check is tendered and endorsement by accepted, will an him as well as endorsement attorneys by plaintiff protect himself.
Nor can defendant take comfort from fact that March chеck and or certified check. This is not a case where not cash an checks established practice tendering appears. accepting had one check and one check Plaintiff’s counsel only; accepted future was checks implication they accept uncertified the letter of March 23d.4 No claim of can negated possible estoppel be made. short, counsel, letter,
In defendant’s in the face of the March 23d took a chance that a check similar to one tendered in March would again counsel. lost. cannot claim now accepted by plaintiff’s They They have made a valid tender on 15th5
(as modified the letter of plaintiff’s attorneys) required. moot, has
Plaintiff moved to dismiss contending, appeal motion, filed declarations that defendant has defaulted support due after the We determination April payment. postponed of that motion until after submission of this case the merits. The that, circumstances, under those a reversal of the orders argument from would result in the issuance a new writ appealed (although an amount less than the one issued in the amount of May However, in the under months).6 delayed payments intervening terms of the in case of default interest accrues *6 8, 1974, the from on the balance as the judgment unpaid date of default. It follows that is to defendant to determine important 4“A is not check a as knоw. I call this to attention of the payment, you because your we had with the check we problem which from client on March 1974. accepted your Furniture, Miami, Florida, The check from Mode was drawn on a bank. In the normal coursе, clear; connections, such a check would take weeks to at extra through we were able cause the expense, to check to be sooner. presented payment “This was not within the problem said or said contemplation Judgment. Stipulation The check, on the dates at office. We Judgment requires our cannot a payment specified accept check, a certified or a cashier’s as except in satisfaction оf the of said requirements Judgment Stipulation.” defendant, 15th, 5The now us an effect record after to discloses attempt April 15th, a tender we a bank. Since hold that default occurred on by deposit April thereafter, the conduct unless tо not cure default. agreed plaintiff",could 6It is not contended the that made 15th were other than after April accepted as in satisfaction partial judgment. date, 15th, at later is balance
whether the balance on or some April is to be calculated. and future interest both retroactive denied; from the orders to motion dismiss appealed appeal are affirmed.
Dunn, J., concurred-. FILES, J.,P. I wouldreverse the orders. Dissenting that each
In parties contemplated my opinion check, are debts installment would be business ordinarily paid there would meant that acceleration clause in agreement paid. the due date. check delivered on be no acceleration if a collectible have same in the should The acceleration clause meaning unilateral The creditor’s pronouncement underlying agreement. a certified check was not March 23 that he would cash or оnly accept to or operative change agreement 15 was
There that the check tendered on is no good. dispute in the in a bank made and tender was deposit timely good by kept trial benefits creditor creditor’s The decision of the court name. and further with an acceleration whose vex his debtor legal due. what is collecting proceedings preference Files, J., was of 1975. A for a was denied petition rehearing August for a should be petition granted. Appellant’s opinion petition J., Mosk, was October Court denied 1975. hearing by Supreme that the should granted. opinion petition