88 F.2d 188 | 8th Cir. | 1937
Appellants executed a principal note and annual coupon interest notes payable to appellee and secured by a mortgage on land located in Minnesota. After default in payment of several interest notes, this action was filed for recovery on the notes. A .verdict for plaintiff was directed, and
The decisions of Minnesota recognize the difference between an action upon the note, where no foreclosure is sought, and an action on the note joined with a foreclosure proceeding. Dunnell’s Minnesota Digest, vol. 4, p. 667, § 6205; Winne v. Lahart, 155 Minn. 307, 193 N.W. 587, 34 A.L.R. 844; and see Conn. Mutual Life Ins. Co. v. Hansell, 194 Minn. 41, 259 N.W. 390, 391; Burrows v. Paulson, 64 N.D. 557, 254 N.W. 471. This action is indisputably one upon the notes alone and is not within the provisions of the statute above quoted. It may be within the provisions of section 3, subd. 2, of the same act which has to do with postponement of enforcement of judgment by execution sale, but the effect of this latter section is not to postpone the bringing of the action or securing of judgment but to suspend realization upon the judgment. This provision as to execution sales appears in a different paragraph of the act and is equally clear. There the remedy is a jurisdiction placed in the court to postpone the enforcement of the judgment “or give other relief.”
Another matter suggested in the brief of appellants but not argued beyond a bare statement and citation of authorities is that the court erred in not submitting to the jury the question of whether appellee had lost its right to accelerate payment through a failure to exercise such right within a reasonable time after the last default. The principal note contained a provision that: “If any installment of interest be not paid at maturity, then this principal note and all interest accrued thereon shall, without notice and at the option of the holder hereof, mature and be collectible at once.” The last default was on the interest note due April 1, 1935. Without any earlier declaration of acceleration, this action was filed December
While there is some difference in the authorities, it seems to us that the workable, sensible rule is that no waiver can be predicated merely on delay but that the debtor must show some prejudice to him because of the delay in exercising the acceleration option before there can be a waiver or, in reality, an estoppel. Glas v. Glas, 114 Cal. 566, 46 P. 667, 55 Am.St. Rep. 90; Hewitt v. Dean, 91 Cal. 5, 10, 27 P. 423; Westcott v. Whiteside, 63 Kan. 49, 64 P. 1032; and see Swearingen v. Lahner, 93 Iowa, 147, 152, 61 N.W. 431, 433, 26 L.R.A.(N.S.) 765, 57 Am.St.Rep. 261; and notes to cases in 51 L.R.A.(N.S.) 151, 46 L.R.A.(N.S.) 475, 22 L.R.A.(N.S.) 956, and 12 L.R.A.(N.S.) 1190. There is no claim here either in the pleadings or in the evidence that the delay in bringing this action has in any way been prejudicial to appellants.
The judgment must be, and is, affirmed.
This provision of the statute is as follows: “Sec. 3. 2 Jurisdiction of court. — The court shall have the same jurisdiction to postpone the enforcement of judgment by execution sale or to order resale or give other relief where such judgment is rendered in an action to collect a debt or obligation secured by a real estate mortgage, the foreclosure of which might be affected under the terms of this act, as is conferred by this act with regard to the mortgage.”