165 P. 692 | Cal. | 1917
This is an action upon a note whereby F.M. Cale promised to pay to L.H. Honey or order the sum of five thousand dollars, with interest, in four installments of one thousand two hundred and fifty dollars each. The instrument contained a provision that, in case any installment was not paid within five days after it became due, the whole of the principal and interest remaining unpaid should forthwith become due and payable at the election of the holder of the note. Before the delivery of the note by Cale to Honey, Mabel G. Cale and J. Jerome Smith indorsed the note by writing their names on the back of it. Honey indorsed the *210 note and delivered it to the plaintiff. The complaint alleges that the first installment was not paid when due, that more than five days had elapsed since such installment became due, and that the whole of the note, with interest, is now due and payable. Judgment for five thousand dollars, with interest and costs, was prayed. F.M. Cale and Mabel G. Cale defaulted. J. Jerome Smith answered, denying various allegations of the complaint, and setting up certain matters by way of affirmative defense.
A jury trial was waived, and the court made its findings and entered judgment in favor of the plaintiff. From this judgment Smith appeals.
The complaint contains allegations of presentment and notice of dishonor. These allegations were, however, immaterial. By reason of the provision allowing the holder, upon certain conditions, to accelerate the time for payment of the principal, the note was not a negotiable instrument. (National Hardware Co. v. Sherwood,
It was not necessary for the plaintiff to allege, or for the court to find, that plaintiff had elected, after an installment had been five days overdue, to declare the entire sum payable. The complaint set forth the facts which authorized the holder to exercise this right, and the commencement of the action to recover the full amount is, in itself, an exercise of the option and a sufficient notice thereof. (Hewitt v. Dean,
The affirmative grounds of defense set up by Smith in his answer were that there was no consideration for the note, and that the same was obtained from Cale by means of threats of criminal prosecution. The appellant assails as unsupported the court's findings against these defenses. It appears that in October, 1911, John T. Cale, a brother of F.M. Cale, was the owner of six lots in the city of Richmond, Contra Costa County. In that month he conveyed said lots to one McCabe, the deed being executed by F.M. Cale as attorney in fact for John T. Cale. On February 3, 1912, McCabe conveyed the lots to Honey. Thereafter, in June, 1913, John T. Cale executed and delivered a deed conveying the same lots to J.C. Rohlfs, F.R. Cooper, and Fred J.T. Dawson. F.M. Cale took part in this transaction. Rohlfs, Cooper, and Dawson placed their deed on record. Neither the deed from Cale to McCabe, nor that from McCabe to Honey, had then been recorded. When Honey learned of the subsequent conveyance, which, apparently, divested his title (Civ. Code, sec.
Complaint is made of the failure of the court to find on the allegations of the answer that the plaintiff was not a bonafide holder for value before maturity. But since, as plaintiff concedes, her rights as holder of a non-negotiable instrument were no greater than those of the original payee, these allegations did not present a material issue.
We find no error in the record.
The judgment is affirmed.
Shaw, J., and Lawlor, J., concurred.
Hearing in Bank denied.