— Action to foreclose a mortgage, the plaintiff claiming that he was entitled to elect, and did elect, to have the principal become due for non-payment of interest. The plaintiff had judgment on demurrer to the answer, and the defendant appeals. We think the answer presented no defense.
1. The note was dated June 25, 1885, and the interest was payable annually. On October 10, 1885, the defendant paid eight hundred dollars on account of the note, without anything being said on either side as to whether the payment was to be applied to the interest or to the principal. Conceding, in favor of the defendant, that the payment was to be applied first to the interest, it will be so only as to interest up to the date of the payment. The balance of the payment must be applied to the principal. The law will not apply it to future or unearned interest. After making the application as above stated, there remained something over eight months’ interest to fall due on June 25, 1886. That balance of interest fell due on that day, — for the meaning of the contract is that the interest was to be paid annually from its date, and not annually from *570any date at which a payment might happen to be made; and the fact that the defendant chose to make the payment above mentioned does not affect the interest on the unpaid principal. The non-payment of this eight months’ interest entitled the plaintiff to elect to consider the principal as due.
2. The plaintiff did elect to have the principal become due. The complaint alleges that on July 14, 1886, the plaintiff notified the defendant of his election by leaving a notice at the defendant’s residence with a person of discretion in charge of such residence, and by leaving a notice at the defendant’s place of business with a person of discretion in charge of such place of business, the defendant being then absent from his residence and place of business, and the plaintiff having been unable, after diligent search and inquiry, to ascertain his whereabouts. The only construction we can give to the answer is, that the defendant was not personally notified or “ informed ” of the election. We think the notice given was sufficient.
3. The execution and delivery of the note payable to the order of plaintiff being admitted, the denial that plaintiff was the “ holder ” of the note and the assertion that the bank was the holder, without averring any facts showing such to be the case, were of conclusions merely, and raised no issue. (Poorman v. Mills & Co., 35 Cal. 119; Wedderspoon v. Rogers, 32 Cal. 571; Hook v. White, 36 Cal. 302.)
4. But we think the court erred in allowing a greater sum as counsel fee than the one stipulated in the mortgage. In the absence of a provision in the mortgage, the plaintiff is not entitled to a counsel fee (Sichel v. Carrillo, 42 Cal. 492; Mascarel v. Raffour, 51 Cal. 242), unless there is a statute which allows one. The statute of March 27, 1874, provides that “ in all cases of foreclosure of mortgage the attorney’s fee shall be fixed by the court in which the proceedings of foreclosure are *571had, any stipulation in said mortgage to the contrary notwithstanding.” Read literally, this language might mean that “ in all cases of foreclosure ” a counsel fee shall be fixed by the court, whether the mortgage provides for one or not. But we do not think that such is its meaning. The title of the act is “ An act to abolish attorneys’ fees and other charges in foreclosure.” And there is no provision in terms that any fee shall be allowed. The thing to be “ fixed ” is “ the attorney's fee.” We think this means “ the attorney’s fee provided for by the mortgage,” and that it has no application where none is so provided. But even if this is not the true construction, and the court can allow a counsel fee where the mortgage is silent upon the subject, if, as here, a counsel fee is agreed upon between the parties, it must be held to be an exclusion of any greater fee.
The court therefore erred in allowing a greater fee than the one provided in the mortgage. But this does not make the ruling on the demurrer to the answer erroneous. The counsel fee stipulated to be paid was not an element of the cause of action, but was, like the costs, a mere incident to it, and was to be fixed by the judge in his discretion, not exceeding the stipulated amount. (Carriere v. Minturn, 5 Cal. 435.)
The other points do not require special mention.
We think the cause should be remanded, with directions to the court below to modify its judgment in accordance with the views above expressed, the appellant to recover his costs of appeal.
Foote, C., and Belcher, C. 0., concurred.
The Court.For the reasons given in the foregoing opinion, the cause is remanded to the court below, with direction to modify its judgment in Accordance with the views expressed in said opinion, the appellant to recover his costs of appeal.
Hearing in Bank denied.