139 Cal. App. 447 | Cal. Ct. App. | 1934
On March 16, 1931, defendant executed and delivered to payee an installment note in the principal sum of $25,000, payable in monthly installments of $4,000 each, eommeneing June 16, 1931, with a final payment of $1,000 in December of that year. The payee of
Appellant contends that the trial court should have held and found that there was a defect of parties defendant, in that the Edison Securities Company, Metropolitan Trust Company and Daniel Rissman were parties in interest and indispensable to the determination of the case. Defendant did not seek to have joined any of the said parties as defendants which it had the right to ask under the law (Code Civ. Proc., sec. 379). The relationship of Metropolitan Trust Company to the parties, as shown by the evidence, was' that of escrow-holder, that is, a mere agent of the Sierra Company, Edison Securities Company and Rissman, with no interest in the subject matter of the action, its sole duty being to carry out their orders.
It appearing at the trial that both Daniel Rissman and Edison Securities Company had assigned their interest to plaintiff, there was no such defect of parties as to preclude recovery by plaintiff. The note sued upon was delivered at the trial and was admitted in evidence. The payee of a note who has pledged it with a third party but still has a substantial interest therein is entitled to maintain an
On the day the trial started defendant by leave of court filed an amended answer setting up a third defense not embodied in the original answer, to the effect that no proper demand for payment was made of it before the suit was filed and that it, the defendant, was at all times ready, able and willing to pay the installment when it became due. The court found “that it is untrue that the defendant on the 16th day of July, 1931, or at any time thereafter, was ready, able and willing or that it is now ready, able and willing to pay the said note or any part thereof, and that there is now due on said note the sum of $21,122.50 with interest at 7% per annum from July 16, 1931. . . . The court further finds that all allegations in the answer of defendant herein inconsistent with the findings of fact herein are untrue.”
“The question seems to have been well settled that the mere pledging of a promissory note or other evidence of indebtedness as collateral security for the payment of a debt does not divest the pledgor of title and vest title in the pledgee” (Simansky v. Clark, 128 Me. 280 [147 Atl. 205, 65 A. L. R. 1316]). Plaintiff, as assignee of pledgor, had the right to make a demand for payment of the installment due July 16th, and upon failure of defendant to make the payment plaintiff had „the right to exercise the option accelerating the payments and to declare the whole amount due. The evidence shows that this was done. Appellant
Judgment affirmed.