Lanpher v. Barnum

58 N.W. 988, 57 Minn. 172, 1894 Minn. LEXIS 252

• Court: Supreme Court of Minnesota
• Decided: May 7, 1894
• Docket: No. 8742
• Status: Published

Opinion

Mitchell, J.

The defendant guarantied payment of a note, with six interest coupon notes attached, executed by one La Belle, and payable December 22, 1894.

The note contaiifed a provision that, “if any or either of said annexed coupon notes shall remain unpaid for ten days after maturity thereof, T expressly agree with the payee of this note that he or his assigns, or other holder of this note, may, at his or their option, and without notice to the maker, declare the said principal sum, as well as any or either of said past-due coupons, as fully due and payable as if this note was payable on demand, mid may proceed and collect the same by foreclosure of the mortgage given to secure the same, either under the power of sale therein contained, or by suit or other proceeding, in court or otherwise, as he may elect.”

One of the coupon notes having remained unpaid for ten days after maturity, the plaintiff brought this action for the full amount of the note, as presently due and payable.

The question in the case is whether this provision authorized the plaintiff to declare the principal sum to be due and payable generally, for all purposes, or only for the purpose of remedies on the mortgage.

We have had occasion recently, in White v. Miller, 52 Minn. 367, (54 N. W. 736,) to consider the effect to be given to provisions of somewhat similar character in mortgages, but where the notes'themselves contained no such stipulation. These are reasons, founded largely on considerations of policy, wdiy such stipulations should be construed as relating only to the remedy on the mortgage, which would not apply where the stipulation is in the note itself.

The defendant’s contention is that the clause italicized limits what precedes to the purpose of appropriating and applying the mortgage security. Perhaps there would have been some force in this if the stipulation had ended with the word “court.” But, after enumerating every possible remedy on the mortgage, there is added, “or otherwise, as he may elect.” It seems to us clear that this refers back to the clause “may proceed and collect the same,” and has no relation to the foreclosure of the mortgage. Thus consti'ued, the stipulation authorizes the holder of the note, upon the default named, to declare the principal sum due for all purposes.

It can hardly .be necessaiy to add that the defendant, having guarantied the payment of the note according to its terms, is not entitled to have any other or different construction placed upon this stipulation than the maker would, had he been sued.

Order affirmed.

Buck, J., absent, sick, took no part.

^Opinion published 58 N. W. 988.)