Haase v. Blank

Jones, J. Appellants’ counsel contend that plaintiffs did not elect to declare the principal due; that due notice was not given before suit was brought; that the payment of $50 into court was made within a reasonable time; and that the plaintiffs, by reason of their actions and statements, are estopped to maintain foreclosure proceedings. It is undisputed that the written notice served on defendant McClyman by plaintiff Mielke on March 21st declared in unmistakable terms that plaintiffs did thereby “exercise the option given them in said mortgage” and did “declare the whole amount of said mortgage, indebtedness due, by reason of the failure of said mortgagor and his assigns to pay the interest due on said note on October 1, 1920.” Defendants contend, however, and it does not seem to be denied, that Mielke said when he served the notice that all he wanted was the interest, and it is upon this statement that defendants base their contention that the notice was futile and that plaintiffs are estopped to bring suit for foreclosure. It is ingeniously argued by appellants’ counsel that since the contract required no formal written notice of election to declare the principal due, such notice might be either written or verbal in whole or in part; that the writing was meaningless until served; and that- upon service Mielke could limit its meaning and effect by whatever -verbal statements he might choose to make, and that he chose to make ií a demand for the interest only. We are led to believe, however, that defendants’ counsel has confused the act with the motive for the act, and even though, perhaps, Mielke did not wish to foreclose and would have been satisfied with a prompt payment of the interest, .nevertheless his [21] motive in serving the notice does not alter the fact that it contained in clear terms an election to declare the wholé indebtedness due, and was effective notice according to the terms of the contract. Construed most favorably for defendants, the language could only mean that plaintiffs did not intend to' foreclose if the interest was promptly paid, and even though there had been an express agreement not to foreclose until further notice was given, still the suit could have been maintained at once, since such promise would have been without consideration. Radford v. Smith, 149 Wis. 163, 135 N. W. 472; Fanning v. Murphy, 126 Wis. 538, 105 N. W. 1056. In the case of Felton v. Stacey, 175 Wis. 471, 185 N. W. 536, plaintiff’s attorneys served notice of election to1 declare the whole of a land-contract indebtedness due for failure to pay interest and part of the principal due on a certain date. The notice contained the following statement: “It is not Mr. Felton’s intention in doing this to commence foreclosure proceedings at all, providing this note is paid within a short time, and a substantial amount is paid upon other principal.” The one note mentioned, with interest, was paid, but no payment was made on other principal, and a suit to foreclose was brought and carried to a successful termination, this court holding that the notice was intended and understood to be an election to declare not merely a paid but the whole of the indebtedness due upon failure to make the payments mentioned. The case serves to illustrate that a mortgagee with neither desire nor intention to foreclose, who serves such notice chiefly for the purpose of - stimulating greater activity in the payment of interest, is not precluded, upon nonpayment of the interest, from taking full advantage of the language and effect of his notice. The claim of estoppel is based on the statement of Mielke already discussed and upon testimony that McCly-man made trips to see Dickson, trying to induce him to pay the interest. It had been made plain to McClyman that the [22] interest must be paid and that he would have to pay it if Dickson did not. There is no evidence of any agreement to forego foreclosure, or that the notice would not be effective if certain things were done, and the defendants did not avail themselves of the opportunity given to pay the interest.- The trial court was convinced that there were not sufficient facts to constitute an estoppel, and we concur in that view. There remains the contention that a reasonable time did not elapse between service of the notice and bringing of suit. The interest was due October 1, 1920. The notice was served on McClyman March 21st and on defendant Ida McClyman April 5, 1921. Suit was commenced on April 12th. On April 29th defendants paid into court $50, the interest remaining due since October 1st, with interest on such amount. The contract contained no clause as to the time that should elapse between notice and suit. Though in most jurisdictions no such notice is required where such options are contained in the contract, the rule in Wisconsin is different. “The rule requiring the service of such a notice is not based upon judicial or other authority, but was declared as a rule of equity, to be applied where a person seeks to enforce his mortgage to the full extent, under an option to do so, by reason of some default in the terms thereof.” Marshall, J., in Julien v. Model B., L. & I. Asso. 116 Wis. 79, 92 N. W. 561. After the service of the notice the mortgagor should have a reasonable time to pay the amounts due before being put to the expense of a suit. Rosseel v. Jarvis, 15 Wis. 571. What is a reasonable time, however, depends upon the circumstances of each case, and in view of the fact that the interest had been due over four months, notwithstanding repeated demands and extensions of time, and the fact that defendants’ payment of interest into court seems to have been influenced more by the bring [23] ing of the suit than any other motive, and of the further fact that the whole amount due was never tendered, we hold that the suit was properly brought, and that a reasonable time had elapsed after notice was given. By the Court. — Judgment affirmed.