Hensel v. Bissell , 110 Wash. 568 ( 1920 )

Parker, J.

The plaintiff, Hensel, commenced this action in the superior court for Spokane county, seeking foreclosure of a mortgage executed and delivered to Tn'm hy the defendants, Adelina T. Bissell and husband, upon real property owned hy them in that county. Trial upon the merits in that court resulted in a decree of foreclosure as prayed for hy the plaintiff, from which the defendants have appealed to this court.

On January 21, 1913, respondent Hensel loaned appellants Bissell the sum of $2,300, when they executed and delivered to him their promissory note for that sum, payable one year after date, with interest at the rate of eight per cent per annum, payable semi-annually, interest coupons therefor being attached to the note. Both the note and the coupons were signed by both appellants. In the body of the note and in the coupons it was stipulated that the principal and interest should, after maturity, draw interest at the rate of twelve per cent per annum. On June 5, 1915, all of the principal and a considerable portion of the interest was then due and unpaid. On that date respondent and appellant D. J. Bissell, Jr., entered into a written agreement reading in part as follows:

“This agreement entered into this 5th day of June, 1915, by and between A. B. Hensel, party of the first part and the payee in that certain note of $2,300 dated Jan. 21, 1913, due in one year, and D. J. Bissell, Jr., party of the second part and one of the makers of the above described note, Witnesseth—

“That in consideration of the sum of $398.55 this day paid by said second party, the receipt of which is hereby acknowledged, the said first party does hereby extend the payment of said note for two years from the 1st day of June, 1915, at the rate of 8% per annum, payable semi-annually, upon the amount of principal and interest this day due upon said note after deducting said payment of $398.55, which balance the parties hereto agree to be the sum of $2,500.

“A. B. Hensel,

“D. J. Bissell, Jr.”

This action was commenced -in September, 1918, which, it will be noticed, was some fifteen months after the new maturity date of the $2,300 principal with the $200 added thereto. Interest was claimed by respondent in the foreclosure action at the rate of eight per cent only, and awarded by the decree accordingly.

It is contended in behalf of appellants that the note was altered to their prejudice after it was executed and delivered to respondent, by tbe insertion of tbe figures “12” in the blank space in tbe printed form of tbe note for specifying tbe rate of interest after its maturity, and by tbe insertion of tbe figures “12” in tbe blank space in tbe printed form of tbe coupons for specifying tbe rate of interest after maturity, and that therefore recovery upon tbe note and coupons should be denied. This contention presents, of course, only questions of fact. We deem it sufficient to say that we have reviewed tbe evidence and are quite convinced that it calls for the conclusion reached by tbe trial court, that there was no such alteration in tbe note or coupons.

It is contended in appellants ’ behalf that tbe interest exacted was usurious, and that they are therefore entitled to have tbe amount of tbe judgment reduced accordingly. This contention seems to be rested upon tbe theory that the payment of $398.55, made at tbe time of tbe mailing of tbe above agreement, together with tbe $200 which was added to tbe principal of tbe note, amounted to more than twelve per cent on the $2,300 principal, computed for tbe period that interest thereon was then due and unpaid. It may be that tbe total of tbe payment of $398.55 then made and the-$200 added to tbe principal exceeded by a small amount twelve per cent upon tbe original $2,300 principal, computed for tbe period interest was then due and unpaid. But tbe $200 was not then paid, and it was not to be paid save at tbe agreed new maturity date. Treating the $200 as interest agreed to be paid, as it may be conceded it should be so treated for the purpose of determining whether or not tbe maximum legal contract rate of twelve per cent was agreed to be exceeded, it still appears that tbe interest paid to tbe time of making tbe extension of maturity agreement, and tbe interest then agreed to be paid in tbe future, together ■with the $200 added to the principal, does not exceed twelve per cent per annum upon the original $2,300 principal, computed for the period for which interest was due at the time of making the agreement and for the agreed period of extension of time of maturity. We are of the opinion that the interest agreement was not usurious.

Some contention is made in appellant’s behalf rested upon the theory that the agreement for the extension of time of the payment of the note and the adding of the $200 to the principal thereof was void in that it increased the amount of the mortgage lien against the community property without Mrs. Bissell’s consent, she not having signed the agreement. , There might be something to this contention were it not for the fact that the mortgage lien was not, as we view it, increased in amount by the terms of the agreement. Had the agreement not been made, the default in the payment of the principal would have entitled respondent to recover interest upon the loan at the rate of twelve per cent per annum after the original maturity of the loan, instead of eight per cent as was stipulated by the agreement, and resulted in the amount awarded upon' foreclosure being larger than was awarded by this decree. We fail to see wherein Mrs. Bissell’s rights have been prejudiced by the agreement, which, under the circumstances, was a concession on the part of respondent, more than on the part of appellants, and an agreement which we think the husband could lawfully make in the interest of the community.

The decree is affirmed.

Holcomb, C. J., Tolmax, Mitchell, and Maix, JJ., concur.