United Insurance Co. v. Ruben
United Insurance Co. v. Ruben
Opinion of the Court
This appeal presents a single question. Does it appear from the facts alleged in the complaint that the defendants undertook and agreed, in consideration of an extension of the indebtedness, to pay the principal sum of the extended note at maturity, or was the agreement as disclosed by the complaint simply one to pay the interest and to perform such covenants in the trust deed and note as related to the preservation of the security? It is the contention of the defendants that the note plainly obligates the defendants only to pay the .interest and to preserve the security. This contention is based upon the fact that the first paragraph of the promissory portion of the contract is an agreement on the part of the holder of the note to extend
We think this contention cannot be sustained. A fair construction of the contract leads to the conclusion that there is an agreement upon the part of defendants to perform the conditions upon which the extension was granted, and that this agreement constitutes the consideration for the extension. The sole remaining problem is to ascertain whether the conditions included an agreement to pay the principal sum of the note. We conclude that they did not. While there is an agreement to “keep and perform all and singular the covenants and agreements in said note and trust deed contained,” and while, literally and standing alone, this might be held to include an agreement to pay the principal, sum,, the contract unambiguously indicates that such was not the intention of the parties. It is clear that the extension is granted in consideration of a promise on the part of defendants to perform during the extension period certain, covenants of the note and trust deed. Obviously, it was not contemplated that the payment of the note should be made during the extension period, for this would be repugnant to the purposes of an extension agreement.
The second paragraph of the contract provides that in case of a failure to keep and perform any one of the covenants and agreements contained in the note and trust deed, the agreement shall at once become null and void, and the
“This allegation cannot change the situation. The assertion of plaintiff’s duty under the written contract is, of*556 course, only a declaration of the pleader’s construction, and of no force unless supported by the writing itself.”
We think the same comment is applicable to the allegation in the complaint that the defendants agreed and promised to pay the note.
For the foregoing reasons the order must be reversed.
By the Court. — The order appealed from is reversed, and the cause remanded with directions to sustain the demurrer.
Reference
- Full Case Name
- United Insurance Company v. Ruben and others
- Status
- Published