93 P. 1046 | Cal. Ct. App. | 1907
Action on promissory note. Judgment for plaintiff and defendant appeals.
Defendant on August 1, 1905, executed to plaintiff's assignor a promissory note for $2,000, using for that purpose a blank form as follows:
"$__________ Los Angeles, Cal., __________, 190_.
"On __________, 190_, at three o'clock P. M. of that day (no grace) for value received, I promise to pay to the order of __________, __________ dollars, at the Los Angeles National Bank, with interest payable monthly at the rate of __________ *174 per cent, per __________ until paid. [If said interest be not paid when due, it shall be added to the principal, and bear interest at the same rate as the principal, and the whole amount of principal and interest shall thereafter be due and payable at the option of the payee.] Principal and interest payable in Gold Coin of the United States; and should this note not be paid at maturity it shall thereafter bear interest at the rate of two per cent, per month." (The italics and brackets are inserted for purpose of reference.)
The amount ($2,000), date (August 1, 1905), day when due (November 1, 1905), and the name of the payee (Caples Bros., Portland, Oregon), were inserted in the proper blanks in the form; the words italicized were erased by running a pen through them, and there was written immediately above them the words, "without interest."
It is conceded that the portion of the note included in the brackets has no bearing upon the question to be considered upon this appeal, which is: Was it the intention of the parties to said note that the principal should bear interest as provided in the last clause of the note?
The agreement that the principal shall bear interest at the rate of two per cent per month after maturity is irreconcilable with the promise "without interest until paid." The words "until paid" are a part of the original form, and the words "without interest" are the only written part of the instrument to be considered in applying the rule of section
This construction is also supported by the rule of section
The conclusion of the court that plaintiff was entitled to recover judgment for $2,000, with interest thereon at the rate of two per cent per month from November 1, 1905, was correct, but would have been better expressed had the computation of interest been made and the whole amount of the principle and interest due at the date of the finding stated therein. The judgment as framed apparently entitles the plaintiff to continue to enjoy the benefit of the two per cent per month interest clause until execution on the judgment. This is improper.
The statute provides (Code Civ. Proc., sec. 1035), "the clerk must include in the judgment entered up by him any interest on the verdict or decision of the court from the time it was rendered or made." The interest after verdict or decision must be computed at the legal rate upon the aggregate amount of the principle and interest due at the contract rate at the time of the decision or verdict was rendered. (Murdock v. Clark,
That there may be no uncertainty in this respect the judgment should be modified so as to state the total sum of principal and interest due at the date of the rendition of the decision (findings) in accordance with the foregoing opinion, *176 which appears from the record to have been on July 20, 1906. Eight months and nineteen days' interest at two per cent per month on $2,000 would be $345.33. The amount of the judgment, then, should be $2,345.33, entered as of July 20, 1906. The statute provides the rate of interest thereon.
It is therefore ordered that the superior court modify said judgment by striking out the words and figures "two thousand (2,000) dollars, together with interest thereon from November 1, 1905, at the rate of two (2) per cent a month," and inserting in lieu thereof the words and figures "two thousand three hundred and forty-five and 33/100 ($2,345.33) dollars"; and, when said judgment is so modified, it is affirmed.
Allen, P. J., and Shaw, J., concurred.