Patten v. Pepper Hotel Co. , 153 Cal. 460 ( 1908 )

Having dissented from the order of the court denying a rehearing of this cause, I desire very briefly to state the grounds of my dissent. The case of Fletcher v. Dennison, 101 Cal. 292, [35 P. 868], does not, in my opinion, support the construction given to the allegations of the complaint and cross-complaint in this action, as to the date of the election to treat the whole amount of the mortgage debt as due for default in the payment of interest. The allegation in respect to this matter in the case cited, is quoted in the opinion of the court. The allegations of the complaint and cross-complaint in this action are simply (in the first) that, "these plaintiffs have elected to exercise the option in said note contained, and have declared and hereby do declare the whole of the principal of said sixty-thousand-dollar note . . . due and payable"; and (in the second) "That default has been made in the payment of interest on said sixty-thousand-dollar note, and because thereof this cross-complaint has, as the owner and holder of said note last mentioned, elected to exercise," etc. These allegations, according to their grammatical and logical construction, mean nothing more than that the option of the respective assignees of the mortgage was exercised at the time of filing their several complaints, and by that means. So construed, it was impossible to deny them, and the hotel company did all that it could do, and all that was necessary to raise the material issue, by alleging a tender on the 25th of July, which was more than a month before the commencement of the action. The evidence very clearly shows that the tender was made as early as the 28th of July, and prior to any notice of an election to treat the whole debt as due. This was a complete defense to the action.(Trinity Co. Bank v. Haas, 151 Cal. 553, [91 P. 385].)

I think also that if section 3275 of the Civil Code applies to cases of this character, the offer to pay at the time it was made should have been held to relieve the penalty or forfeiture of the credit. The court found the neglect to pay the interest on the day it was due, to have resulted from carelessness and forgetfulness, but it did not find that the negligence was gross, and if not it would not uphold the forfeiture or justify the imposition of the penalty.