Opinion
[Syllabus Material] Rehearing Granted 31 Cal. 78 at 81.
Appeal from the District Court, First Judicial District, Los Angeles County.
The mortgage contained a sufficient description of the note to show that it was payable in money generally, and not in gold coin. The Court below directed the mortgage to be enforced by a sale of the mortgaged premises for money generally. The plaintiff appealed from that part of the judgment directing the premises to be sold for money generally, claiming that the judgment should have directed the mortgaged property to be sold for gold coin.
COUNSEL:
M. & R. F. Morrison, for Appellant.
Volney E. Howard, for Respondents.
JUDGES: Shafter, J. Sawyer, J., dissenting.
OPINION
SHAFTER, Judge
Mr. Justice Sawyer delivered the following opinion on petition for rehearing:
The action was brought to foreclose a mortgage given to secure payment of a promissory note executed by defendant, Stearns. The note, as originally given, was not by its terms payable in any specific kind of money, but was only payable in money generally. It was, therefore, not embraced in the provisions of the Specific Contract Act. The mortgage was, in express terms, upon the condition that Stearns should pay the said note " according to the tenor and effect thereof." According to the tenor and effect thereof, it could be paid in any kind of money which the law made a legal tender, and the party was not entitled, upon the contract, to a judgment payable in gold coin. The defendants Domec and Hellman are subsequent encumbrancers. After the execution and record of the mortgage Stearns added a clause to his note, making it payable in gold coin, thereby giving to the payee an additional right to receive a specific kind of money, and an additional and different remedy. No corresponding change was made in the mortgage. The mortgage was conditioned for payment of the note " according to the tenor and effect thereof," as it originally stood, and not as amended. I think the mortgage can only be enforced according to its own terms, and so far as the subsequent encumbrances are concerned, that there can be no judgment for satisfaction out of the mortgaged premises in gold coin. I do not think the question whether a dollar in coin is worth more than a dollar in legal tender notes arises. A new right and a new remedy, which the law recognizes, is given by the new term introduced into the note--a right and remedy not embraced in the terms of the mortgage; and it is a matter of no consequence whether or not the money in which the new note is payable is more valuable than that in which the old might be paid. The new right rests upon contract, and is one that the law respects and enforces, and in that view, at least, it is valuable. I do not concur in the judgment upon the former hearing, and I think a rehearing should be granted.
DISSENT:
SAWYER
Sawyer, J., dissenting:
I dissent.