Corson v. McDonald

SMITH, J. Appeal from a judgment foreclosing a mortgage, and from an order denying the defendant’s motion for a new trial. The mortgage was given to secure a promissory note of date November 26, 1897, for the sum of $3,500, payable with interest on or before one year from date, and for an additional sum of ten per cent on principal as attorney’s fee, in case suit should be commenced to enforce payment. There is contained in the mortgage the following provision: “And it is further understood and agreed by and between the parties hereto, that the mortgagor herein has the privilege of renewing or extending this mortgage for one additional year from the expiration of the term hereof.” The complaint alleges, in effect, that the defendant exercised her option of extending the mortgage for an additional year, and the court so finds; and finds further that the option was exercised and the plaintiff’s assignor notified thereof prior to November 26, 1898. The court also finds adversely upon the plea of the statute made by the defendant. Judgment was accordingly entered for the amount due on the note and mortgage, and also for the sum of $350 as attorney’s fee. The complaint was filed November 10, 1903—that is to say, not within four years from the maturity of the note according to its original terms, but within four years from the closing date of the extension. The finding of the court as to the defendant’s exercise of her option to extend the note for one year is fully supported by the evidence of the plaintiff’s assignor and another witness. But the point is made that the extension of the time and the acquiescence therein of the plaintiff’s assignor was not in writing, and that the court erred in admitting the testimony. But the position is untenable. The agreement contained in the mortgage does not provide that the option of the mortgagor should be expressed in writing. It constituted, in fact, a written proposition on the part of the mortgagee, which, upon *414 acceptance by the mortgagor, became a valid contract in writing on the part of the mortgagee to extend the time. Nor, though the contrary is suggested by the appellant, can the agreement be construed as applying to the mortgage only and not to the note. It is inconceivable that such could have been the intention of the parties. With regard to attorney’s fee, there is an apparent discrepancy between the finding of the court that $300 is a reasonable fee and the judgment, which is for $350. But as no explanation is given in the briefs of this discrepancy, or any point made thereon by the appellant, we shall assume that the sum contained in the judgment was regarded by the court as a reasonable fee. If, however, there is any error in regard to the fee, it is merely clerical and can be corrected by the court below, notwithstanding the judgment on the appeal. Nor do we see any error in the judgment of the court in making the attorney’s fee a lien upon the property. The note itself provides for the fee, and it thus becomes a part of the sum or sums secured by the mortgage. In the decision cited by appellant, the case was otherwise. (Irvine v. Perry, 119 Cal. 357, [51 Pac. 544, 949]; Klokke v. Escailler, 124 Cal. 297, [56 Pac. 1113].) The judgment and order appealed from are affirmed. Gray, P. J., and Allen, J., concurred. A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 28, 1906.