197 P. 892 | Ariz. | 1921
On March 28, 1919, the appellee (defendant below) was indebted to appellant (plaintiff below) upon four promissory notes aggregating the principal sum of $4,500, payable at Somerton, Yuma county, Arizona, and then long past due. Payment had been demanded many times. Appellee had harvested a cotton crop in Yuma county, which, prior to said date, had been removed by him to Maricopa county to be ginned and marketed. This crop had been ginned and baled, and was on said date in storage at Mesa and at Tempe in Maricopa county. Appellee had theretofore successfully withstood demands for payment of the indebtedness by representing to appellant that he would liquidate it when he sold his cotton. Appellee had on June 13, 1918, given appellant a chattel mortgage upon his said cotton crop to secure other indebtedness owing by him to appellant aggregating the principal sum of $6,000, which said other indebtedness and mortgage were outstanding and long past due on March 28, 1919. The indebtedness of $4,500 was wholly unsecured. On March 28, 1919, appellant sent copies of all the promissory notes and the mortgage to attorneys Hawkins & Anderson at Phoenix, Arizona (the originals being retained at Somerton) with instructions to record the mortgage in Maricopa county and—
“to look into the situation as far as you can at this time and call by phone upon receipt of this letter, and we will determine just what action to take.”
This communication was received by Hawkins & Anderson on March 31st, and by phone on that day, upon being informed by them that appellee was negotiating a sale of his cotton, appellant directed Hawkins & Anderson to attach the cotton to secure the $4,500 indebtedness. This they proceeded to do, and brought this action for that purpose on April 2d, at
The promissory notes in question each contain the following provision governing the payment of attorney fees:
“Should this note not be paid punctually, and an attorney be employed, the makers and indorsers of this note severally and jointly agree to pay a reasonable sum in addition to the sum then unpaid as attorney’s fees. . . . Attorney’s fees to be fixed by the judge of the court.”
The trial court construed this provision of the notes to mean that an attorney fee accrued only in the event of suit being brought to recover upon the notes, and then held that, as appellee had offered to pay the principal and interest of the notes before this action was filed, the action was unnecessarily brought, and that for such reason appellant was not entitled
Appellant presents ten assignments of error, comprising two main propositions: (1) That the trial court’s construction of the agreement concerning attorney fees was erroneous; and (2) that even if it were correct, appellant was entitled to recover attorney fees and interest and costs subsequent to April 4th, under the evidence as presented by the record.
It is not necessary for us to determine in this case whether or not the trial court’s construction of the agreement was erroneous, for even if it were correct the case must be reversed because the judgment is not supported by the court’s findings of fact.
The court concluded as a matter'of law that appellee’s so-called “offers to pay” the principal and interest on the first and second days of April, before the suit was filed, and. the tender thereof, with accrued costs, on April 4th, subsequent to the filing of the suit, precluded a recovery by appellant of more than the amount so “offered” and tendered. That such conclusion was based on a misconception of the law applicable to the facts found by the court appears from the remarks of the court at the termination of the trial, from which we quote the following:
“On the morning of the 2d, Mr. Maxey, by his counsel, goes to Hawkins & Anderson and wants to pay the notes. He asks if the notes are here. He was told they were not here. Of course he could not make a tender then, when he could not get the notes. . . . The suit is a demand in court, and a demand without the note made anywhere is useless. ... You had to produce the note when you demand payment. . . . When you make the demand you must present the note.” (Italics ours.)
“Tender is an offer to perform a contract,'or to pay money, coupled with a present ability to do the act. It imports, not merely the readiness and the ability to pay or perform at the time and place mentioned in the contract, but also the actual production of the thing to be paid or delivered over, and an offer of it to the person to whom the tender is to be made; and the act of tender must be such that it needs only acceptance by the one to whom it is made to complete the transaction.” 38 Cyc. 131.
Appellee urges that appellant, at all times prior to the production of the notes at the Valley Bank on April 4, 1919, waived tender by its acts and conduct in referring appellee to its attorneys, and in not producing or offering to produce the notes on April 1st, and by the inability of its attorneys to produce them on April 2d. Such acts and conduct on the 'part of appellant and its attorneys, even if sufficient to constitute waiver, cannot be availed of by appellee in this case, for the reason that “a waiver is not operative if the other party has not the ability to produce the money presently.” See 26 R. C. L. 624, par. 3; Dorsey v. Barbee, Litt. Sel. Cas. (Ky.) 204, 12 Am. Dec. 296; Sargent v. Graham, 5 N. H. 440, 22 Am. Dec. 469. The record in this case shows conclusively that appellee did not at any time during his negotiations with appellant and its attorneys concerning the
The judgment is reversed and the cause remanded, with directions to enter judgment for appellant as prayed for in its complaint, including a reasonable attorney fee to he fixed by the judge of the court.
ROSS, C. J., and BAKER, J., concur.
Note. — Judge McALISTER, being disqualified to sit in the above-entitled cause, took no part in its decision, and Judge JOSEPH S. JENCKES, of the superior court of Maricopa county, was called to sit in the case in his stead.