Foerst v. Masonic Hall Ass'n of South San Francisco

Citations

• 3 Cal. Unrep. 720
• 31 P. 903
• 1893 Cal. LEXIS 998

Syllabus

<p>Mortgage—Default in Interest—Excuse.—A Mortgage Given to plaintiff by defendant association provided that there should be quarterly payments of interest, and that, on failure to so pay, the whole sum, at plaintiff's election, should become due. After the papers had passed defendant’s officers agreed that plaintiff could have the payments monthly, by calling for them, to which plaintiff assented, and for several months thereafter called and received her interest. Later, she failed to call, the interest was not paid, and plaintiff sought to have the whole debt declared due. Held, that, after plaintiff’s promise to call for the interest, defendant was excused from seeking her, to make payment, and, since the failure to pay was caused by her own act, she could not exact a penalty for such failure.</p> <p>Mortgage—Default in Interest—Claim of Forfeiture.—The fact that plaintiff called for the interest once, when defendant’s president, who always paid her, was not in, does not aid her claim of forfeiture, when it does not appear that she demanded the interest from anyone else, nor that, at the time she called, any interest was due.</p> <p>Mortgage — Default in Interest.—A Finding That Plaintiff Authorized an agent to collect the interest, and that he demanded it from defendant’s president, who refused to pay unless he brought a written order from plaintiff, is contrary to the evidence, when the only testimony on the subject is that of the agent, who stated that he called on defendant’s president, and asked him about the interest, and the president said that the money was ready for plaintiff, but that he would like to have an order before paying it, to which request the agent made no objection.</p> <p>Mortgage—Default in Interest.—A Finding That Plaintiff’s Attorney, both before and after October 1st, which was more than three months after the last payment, demanded payment of the interest, and that such payment was refused unless he had written authority, if true, woul