Clemens v. Luce
California Supreme Court
Appeal from a judgment of the Superior Court of San Diego County, and from an order denying a new trial. The facts are stated in the opinion of the court. The court erred in allowing a judgment on the pleadings, as there being a conflict between the written and printed matter in the note and mortgage, the allegations of the answer tendered an issue as to the maturity of the note and mortgage. (Code Civ. Proe., sec. 1862; Civ.
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Appeal from a judgment of the Superior Court of San Diego County, and from an order denying a new trial. The facts are stated in the opinion of the court. The court erred in allowing a judgment on the pleadings, as there being a conflict between the written and printed matter in the note and mortgage, the allegations of the answer tendered an issue as to the maturity of the note and mortgage. (Code Civ. Proe., sec. 1862; Civ. Code, sec. 1651; Vorwerh v. Nolle, 87 Cal. 236-39.) The mortgage not having been executed as security for the attorney’s fee cannot be extended to include such fee.…
1Opinion of the Court
G-aroutte, J.—
This is an action of foreclosure of two certain mortgages, the note and mortgages being executed by appellant Luce in favor of respondent Clemens. The note was payable two years after date, interest payable quarterly, and if not so paid then to become a part of the principal and bear a like rate of interest till paid. The note also contained the following provision: “And I further agree that in the event of suit being brought against me then there shall be added to any judgment against me rendered in said suit as counsel fees 'an additional sum of five per centum in like gold…
2Cases cited7 opinions
- Hewitt v. DeanCalifornia Supreme Court · 1891
- Prescott v. GradyCalifornia Supreme Court · 1891
- Poorman v. D. O. Mills & Co.California Supreme Court · 1868
- Monroe v. FohlCalifornia Supreme Court · 1887
- Bank of Shasta v. BoydCalifornia Supreme Court · 1893
2 more not listed; retrieve them via the Exa API.
3Cited by23 opinions
- Johnson v. KaeserCalifornia Supreme Court · 1925
- Curtin v. KowalskyCalifornia Supreme Court · 1904
- Trinity County Bank v. HaasCalifornia Supreme Court · 1907
- Jensen v. LichtensteinUtah Supreme Court · 1915
- Mason v. LuceCalifornia Supreme Court · 1897
18 more not listed; retrieve them via the Exa API.