97 Cal. 518 | Cal. | 1893
The defendants executed to the plaintiff the following instrument in consideration of the loan to them by the plaintiff of the sum of three hundred dollars:—•
“San Francisco, January 26, 1889.
“ The undersigned agreement entered into between J. H. Sivers, of San Francisco, and John Sivers and Eliza Sivers, his wife, that the said John Sivers and Eliza Sivers do jointly and severally agree to pay to the said*520 John H. Sivers the sum of three hundred ($300) dollars advanced or loaned to us, or any further sum of money which he may loan to us at such time as circumstances may occur, — that is to say, that if in any event either of us should die, then the survivor shall assume the debt and pay it as if both were living, and we further agree that if the money or loan or moneys so advanced is not paid before the expiration of five years from the first day of January, 1889, last past, then we jointly or severally agree to give a mortgage to the said J. H. Sivers upon the land or property which we own or occupy, described as follows: Southeast quarter of section 4, in township 27 north, of range 6 west, Tehama County, California.
[Signed] “John Sivees.
“Eliza Sivees.”
The court finds as a conclusion of law “ that no time of payment being specified in the obligation herein sued upon, the same became payable immediately upon the demand made by plaintiff for the payment thereof,” and rendered judgment in favor of the plaintiff.
It is also alleged in the complaint and found by the court that at the time of the execution of the instrument it was agreed between the parties that the defendants should pay the sum named in the instrument whenever they should sell the real estate therein described, and that such sale had been made prior to the plaintiff’s demand and the commencement of the action. This finding of the court was made upon oral testimony thereof, and the appellants contend that it was incompetent to show such agreement by such testimony, for the reason that the written instrument must be held to embrace all the terms of the agreement between the parties.
The instrument executed.by the parties does no.t by any specific terms designate the time for its performance. That the provision for payment by the survivor in case one of the makers should die did not postpone the time for payment until that event is shown by the clause providing that in that event it is to be paid “ as
Inasmuch, therefore, as the instrument does not specify any time for its performance, the finding of the court that the money therein named became payable immediately upon the demand therefor was correct (Civ. Code, sec. 1657); and the further findings respecting the foregoing oral agreement did not prejudice the appellants. If the money was payable immediately upon demand, they were not prejudiced by the fact that the demand was not made until after they had sold the property, or by the fact that it had been agreed that a demand should not be made until after such sale.
The proceedings in the justice’s court did not constitute a bar to this action. After the plaintiff had brought
The position of the appellants that the suit in the justice’s court is still pending, for the reason that no judgment of dismissal was entered therein, cannot be considered, since this defense was not presented in the court below.
The judgment and order are affirmed.
Garoutte, J., and Paterson, J., concurred.