Plaintiff's property was seized and advertised for sale, under foreclosure proceedings brought by defendant bank.
Thereupon plaintiff obtained a temporary order restraining the sale without bond, on the sole ground that an extension had been granted plaintiff by the bank.
On trial of the rule to show cause why a preliminary injunction should not issue, judgment was rendered in favor of defendant *Page 400 bank, dissolving the temporary restraining order, awarding the bank damages in the sum of $50 for attorney's fees, rejecting the bank's demand for 20 per cent. damages, and dismissing plaintiff's suit.
From this judgment plaintiff has taken a devolutive appeal.
Plaintiff contends that he was granted an extension until January 1, 1931, for paying his debt.
The vice president of defendant bank testified that he was in charge of all delinquent loans, and states positively that plaintiff was not granted the extension which he claims.
A written agreement of date July 15, 1930, entered into between plaintiff and the bank, shows clearly that the foreclosure suit was to be held up only until July 26, 1930, and that, unless the loan, attorney's fees, and costs were paid, the property of plaintiff would be seized on that day and advertised for sale.
A letter of date July 9, 1930, written by plaintiff to defendant bank, is to the same effect.
Plaintiff has testified merely that he obtained the extension to January 1, 1931, through a telephone call to the bank. Plaintiff, however, does not designate the person by name with whom he conversed.
Under the circumstances, we are of the opinion that plaintiff has failed to establish the extension which he claims with sufficient legal certainty.
Defendant bank has not appealed, and has not answered the appeal and requested any amendment of the judgment of the lower court.
Judgment affirmed. *Page 401