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HOTTEL, J. Action by appellant against appellee on four promissory notes of $1,000 each, and to foreclose a mortgage given to secure the same. The mortgage contains a provision that, upon the failure to pay any one of said notes at maturity, then all of said notes are to become due and collectible." An alleged default in this provision gives rise to this suit. The complaint is in one paragraph and contains the customary averments of a complaint on a series of notes and the foreclosure of mortgage given to secure the same, with the added averments that the mortgage in suit contained the provision above quoted, and that the appellee failed to pay the first note at maturity. Ân affirmative answer in one paragraph was filed, to which there was a reply in general denial. On the issues thus formed, there was a trial by the court and a special finding of facts and conclusions of law, to each of which appellant at the time excepted. Appellant filed a motion for new trial, which was overruled and exceptions saved, and thereupon the court rendered judgment for appellant in the sum of $1,248, and for appellee for costs, and that appellant "take nothing by his action on foreclosure of mortgage herein."
The errors assigned and relied upon by appellant are: (1) The court erred in its first conclusion of law. (2) The court erred in its second conclusion of law. (3) The court erred in overruling appellant's motion for a new trial.
The answer filed by appellee admits the execution of the note and mortgage sued upon, but avers affirmative facts in the way of present ability and readiness to pay at the time and place fixed in the notes, and a tender before suit of the amount due on the first note and interest on the others. The averments of this answer upon the questions here involved are substantially the same as the facts found by the court in its special finding of facts hereinafter set out; and, inasmuch as no question as to the sufficiency of this answer is presented to this court by any assignment of error, we deem it unnecessary to extend this opinion by a copy of the same. In this connection, however, it should be observed that appellant's counsel are now insisting that the answer filed was only in abatement and not in bar of the action, and is bad because it purports to answer the entire complaint and in fact answers but a part. But, as above indicated, the insufficiency of this answer is not presented to this court by any assignment of error, and, in any event, the finding of facts being in substance the same as the averments of the answer, the same question arises on the exceptions to the conclusions of law on the facts specially found, and in such case the sufficiency of the pleading is not important. Scanlin v. Stewart et al., 138 Ind. 574, 575, 37 N. E. 401, 38 N. E. 401; Woodward et al. v. Mitchell et ux., 140 Ind. 406, 407, 408, 39 N. E. 437; Smith, Trustee, et al. v. Wells Mfg. Co., 148 Ind. 333, 335, 46 N. E. 1000; Lake Erie, etc., R. Co. v. Hoff, 25 Ind. App. 239, 242, 243, 56 N. E. 925.
A correct understanding of the questions presented by the appeal necessitates a statement of the substance of the special finding of facts and the conclusions of law thereon. The findings, after finding all the facts with reference to the ownership by appellant of certain flouring mill property in Boone county, its description and sale to
appellee, and the execution by appellee of the notes in suit in payment therefor, and the execution of the mortgage in suit given to secure the same, the finding setting out in full a copy of each of the notes and mortgage, which copy contains the provision heretofore set out in this opinion, then proceeds, in substance, as follows: That said notes, with the accrued interest thereon, amount to the sum of $4,274.66, and a reasonable attorney's fee for their collection is $250; that by the terms of said note they were each payable at “the Citizens' State Bank at Jamestown, Indiana;" that said note, falling due on said 25th day of February, 1908, was at no time deposited at said bank; that appellant was absent from the town of Jamestown during all of said day until after 10 o'clock that night; that on said day the defendant had upon general deposit in said Citizens' State Bank, subject to check, over $1,250 in money, being more than enough to pay the note falling due on said day, with accrued interest thereon, and one year's interest upon each of the other three notes; that appellee on said day, and prior thereto and since has, resided in the city of Washington, Daviess county, Ind., and was conducting his milling business in the town of Jamestown by and through one Henry Turner, his agent, all of which was well known to the plaintiff on said day and long prior thereto; that one week prior to said day said Turner, as the agent of appellee, in a personal conversation with appellant, ascertained when the first note would be due and the amount that would be due as principal and interest on said note, and the interest on the other three notes, but did not at that time learn that said notes were payable at said bank; that prior to said day appellee had notified said bank that so much of his general deposit in said bank as was necessary for that purpose was to be applied to payment of plaintiff's note and interest, and at said time arranged to secure additional money from said bank with which to conduct his business, if necessary; that on said date said Turner, as agent of appellee, went into said bank and ascertained the amount of money that appellee then had on deposit in said bank, and informed the officers of said bank that there was sufficient money of appellee on deposit to pay the note and interest due appellant, and that he would have a surplus remaining; that appellee's place of business was near said bank, being three minutes' walk therefrom, and his business was immediately across the street and about 80 feet from appellant's residence; that during all of said day said Turner, as agent for appellee, kept a lookout for appellant in order to pay said note and interest, and was unable to find him; that said note was not presented at said bank either on the 25th of February or 26th day of February for payment; that during the 26th day of February, 1908, appellant remained at his house practically all day, and was not seen by said Turner; that about 5 o'clock, on the evening of said 26th, appellant went to the office of a lawyer in said town of Jamestown, and consulted him as to his rights in reference to said notes and mortgage; that on the 27th day of February, 1908, at about 11.30 o'clock A. M., plaintiff again went to the office of said lawyer, and in company with him went to said bank and presented said note falling due February 25, 1908, and demanded payment thereof; that the officers of said bank, who had been informed by the appellee and Henry Turner that said deposit of
appellee was to be applied to the payment of appellant's said note and interest, then informed said appellant that the defendant had sufficient money on deposit to pay the note presented, but that they had no express authority or order directing them to make payment, but that defendant's agent, Henry Turner, was authoried to draw a check for the amount; that, immediately after receiving said information, the appellant and his attorney left said bank, and appellant thereupon directed his attorney to institute suit upon said notes and to foreclose said mortgage, and said attorney left Jamestown on the 27th of February, 1908, for the city of Lebanon to file suit on said notes; that upon appellant's return to his residence from the bank said Turner saw him, and told him that he desired to see him, but appellant excused himself, saying that he would see Mr. Turner after dinner; that about 12.45 P. M. on said 27th appellant went to appellee's place of business immediately across the street from his residence, and saw said Turner, who at the time informed appellant that he desired to pay the note due February 25th, with the interest thereon and one year's interest on each of the other notes, and asked appellant if he would accept the money; that appellant informed said Turner that he would not; that said Turner thereupon importuned said appellant to accept the money and permit him to draw a check in payment of said note and interest, but appellant refused and told said Turner that he would not accept money or check; that, under the provisions of the mortgage, the notes were all due, and that the attorney had left Jamestown on the 12.40 car for Lebanon to file a suit upon said notes and to foreclose said mortgage; that on the same day, and prior to the filing of the answer herein, the defendant paid to the clerk of the Boone Circuit Court, as a tender of the principal of said note and the interest thereon until that day and one year's interest on each of the other notes, the sum of $1,248 in standard gold coin of the United States, which sum is still in the hands of the clerk of this court as a tender to the plaintiff in payment of the principal of said note and the interest thereon until the day of filing said answer, and one year's interest on each of the other notes; that on the 25th, 26th, and 27th days of February, 1908, and upon each of the same and during the whole of each of said days, the appellee had upon general deposit in said bank, subject to check, a sum of money in excess of $1,250, and prior to either of said days the bank had been informed by appellee that so much of said deposit as might be necessary to pay first note and interest due on February 25, 1908, was to be applied to such payment; "that the plaintiff failed to present said note due by date on February 25, 1908, to said bank on said day for payment and remained away from Jamestown on said date to avoid the said Henry Turner, and prevent payment on said day, with the wrongful and deliberate purpose and intent of making a default in the payment of said note and interest, when due, in order to render all of said notes due, so as to authorize a suit thereon; that the defendant Rose Nugent is the wife of the defendant Thomas Nugent."
The court stated in its conclusions of law upon the facts found, as follows: "(1) That plaintiff is entitled to a judgment against the defendant Thomas Nugent for $1,248 and an order upon the clerk of this court to apply the money in his hands as a tender to the pay
ment of said judgment; (2) that each of the defendants are entitled to a judgment against the plaintiff for costs."
In the determination of the controlling question presented by this appeal, the appellant has in his favor the statute and certain general principles declared and recognized by the decisions of this and the Supreme Court.
(1) A note made payable at a particular time and place does not impose upon the payee or his assignee the necessity of averring or proving a demand at the time and place fixed in the note; but the payor may show a readiness to pay such demand at such time and place. Section 374, Burns, 1908; Glatt v. Fortman, 120 Ind. 384, 22 N. E. 300; Eaton, etc., R. Co. v. Hunt, 20 Ind. 457; Brown v. McElroy, 52 Ind. 404, 406; Dillingham v. Parks, 30 Ind. App. 61, 69, 70, 65 N. E. 300. It follows from the above that the maker of a promissory note, payable at a particular bank, cannot discharge such obligation by depositing in such bank the funds with which to pay said obligation, and that money so deposited in such bank cannot be deemed to be deposited with the payee's agent, except, of course, that, in the case the holder of such note deposits the same at such bank for collection, he thereby constitutes such bank his agent for such purpose. Glatt v. Fortman, supra, at pages 385, 386, 120 Ind., 22 Ñ. E. 300; Wallace v. McConnell, 13 Pet. 136, 10 L. Ed. 95; Dillingham v. Parks, supra.
(2) (3) Provision in a mortgage of the kind here in question are not in the nature of penalties or forefeitures, "but are to be regarded as agreements between the parties fixing the time and conditions upon which the whole debt may become due." Moore v. Sargent, 112 Înd. 484, 14 N. E. 466; Jones on Mortgages (6th Ed.), § 76.
(3) (4) In such provisions time is the essence of the contract, and a court of equity will not relieve the mortgagor from a default, unless he can show some good excuse for it. Moore v. Sargent, supra; Jones on Mortgages (6th Ed.), § 1179. On the other hand, there are holdings which throw light upon this question from appellee's viewpoint. Upon the subject of appellee's conduct with reference to the default and the effect of his depositing the money at the place of payment, the courts of our own and other States have expressed the opinions following: In the case of the Bedford Bank v. Acoam, 125 Ind. 584, at page 587, 25 N. E. 713, at page 714, 9 L. R. A. 560, 21 Am. St. Rep. 258, the court says: While we are not inclined to the view that a promissory note negotiable and payable at a bank in this State is in all respects the equivalent of a check drawn by the maker against a fund on deposit in the bank, so as to require the banker to pay the note on presentation out of funds applicable to that purpose, we can conceive of no valid reason why a note or bill thus drawn should not be held to authorize the banker to pay, and thereby become subrogated to all the rights of the holder to the same extent as if it had purchased the paper after maturity." In the case of Wallace v. McConnell, supra, at page 150, 13 Pet., 10 L. Ed. 95, the court says: "And when a note or bill is made payable at a bank, as is generally the case, it is well known that, according to the usual course of business, the note or bill is lodged at the bank for collection; and, if the maker or acceptor calls to take it up when it falls due, it will be de
livered to him, and the business is closed. But, should he not find his note or bill at the bank, he can deposit his money to meet the note, when presented, and, should he be afterwards prosecuted, he would be exonerated from all costs and damages upon proving such tender and deposit." This court, in the case of Dillingham v. Parks, supra, at page 70 of 30 Ind. App., at page 303 of 65 N. E., says: "Where the maker has no defense to the note, and has money on general deposit at such bank, it may in this State in good faith apply such funds in payment of the note upon the presentation thereof by the holder at maturity, and may set off the amounts so paid against the demand of the maker for the money so on general deposit. The failure to make presentment at the bank does not relieve the maker from his promise to pay, but only relieves him from damages in case he is ready at the bank to pay, and there is no one there to receive the money. Such facts are regarded as equivalent to a tender of the sum payable; and an answer showing such tender and payment of the money due into court will bar a recovery of interest and costs, but will not bar the causes of action on the note.' To the same effect is the case of Bedford Bank v. Acoam, supra.
(4) Upon the subject of the default being caused by the acts or conduct of the payee of the obligation and the effect thereof, our own and other courts have expressed themselves as follows: In the case of Moore v. Sargent, supra, the court says: "Or if the default was induced by the fraudulent or inequitable conduct of the creditor, or by any agreement or promise upon which the debtor might rely which operated to mislead or throw the debtor off his guard, a court of equity would interfere to stay proceedings or the action might be abated upon the facts being properly pleaded." In the case of Eaton, etc., R. Co. v. Hunt, supra, the court says at page 468 of 20 Ind.: But if the maker on the trial proves that the money was at the place, ready to be applied in payment when the note fell due, he will not be subject to costs. Indiana & Illinois R. R. Co. v. Davis, 20 Ind. 6 [83 Am. Dec. 303]." In the case of Glatt v. Fortman, supra, the court says: "The readiness to pay at the place designated constitutes a defense if properly followed up." In the case of Noyes v. Clark et al., 7 Paige (N. Y.) 179, at pages 180, 181, 182, 32 Am. Dec. 620, the court says: "A court of equity, however, will not permit the mortgagee or his assignee to take an unconscientious advantage of the mortgagor who is willing to pay at the time prescribed, but who is unable to do so in consequence of the act of the other party. In this case it is evident that the defendant Clark was both ready and willing to pay the interest on his bond and mortgage on the day it became due. And, if the assignee did not intentionally deprive him of the power of doing so by keeping out of the way and concealing his place of residence, he transacted the business of the assignment in such an unusual manner as to produce the same result. . . . The case of Johnson v. Houlditch (Burrow's Rep. 578) is in point to show the authority of the court to interfere and stay the proceedings in such a case. There the plaintiff had kept out of the way to prevent a tender of the debt, and the court, upon the ground that the suit was oppressive, ordered the suit to be stayed upon payment of the amount due, without costs, although a technical right of action existed when the suit was brought." In the case of Bell v.