Supplemental opinion on rehearing; rehearing denied.
on rehearing. In our original opinion in this case,
In a petitiоn for rehearing the appellants insist thаt the Code applies only when the сontract permits the creditor to аccelerate the maturity “at will,” or words to that effect, whereas here there is also a condition in the contrаct that the debtors must be in default. The Commissioners’ Comment to the cited section of the Code lends support to the appellants’ argument, for it refers to an аcceleration “at the whim and caprice of one party.” See аlso the Commissioners’ Comment 4 to § 85-3-109.
We think it prоper to modify our original opinion by lеaving that question open for future decision, for even if the appellants are correct in their construction of the Code the decree must neverthеless be affirmed under our prior decisiоns. Apart from the Code, as indicated in оur original opinion, a court of equity will рrotect a debtor against an inequitable acceleration of the maturity of the debt. We followed that course recently in Crone v. Johnson,
That rule is controlling. As stated in our original opinion, Davis assured Seay that if Davis’ son allowed a delinquency to occur, the elder Davis would make it good within three hours, upon being notified. Seay promised to give such notice, but he failed to keep his promise. Ever since Davis, Sr., learned of the delinquency he has stood ready to pay the arrearages, plus the court costs and an attorney’s fee. It would be altogether inequitable to allow Seay tо repudiate his own promise and thereby not only retake the property but also, according to the proof, bring financial ruin upon the older of the two debtors. Hence, without regard to the provisions of the Uniform Commercial Code, the decree of the trial court must be affirmed.
The petition for rehearing is according^ denied.