-That, in order to secure the payment of the said note, said respondents at the same time executed to the said Jesse H. Adams a mortgage upon certain real property situated in the said county of Marion; that after the execution of said note and mortgage the said Jesse H. Adams died, and the said respondent, Sila A. Adams, was duly appointed his administratrix, with the will annexed. It is alleged in the complaint that the respondents failed to pay the installment of interest which fell due on the twenty-third day of August, 1884, and that consequently the whole sum of principal and interest became due by the terms of the note, and the suit was instituted to enforce payment of the entire demand. The respondents in their answer alleged that when the note was made both payee and maker resided in the county of Marion, but that the appellant then, and for more than four months past had, resided in Multnomah county, and that said note had during such time been in said last-mentioned county, and had not, at any time during said period, been in Salem, or to be found there; that the respondent had not presented said note to the maker for payment at any time, at Salem or elsewhere, or demanded payment of said interest; that on said twenty-third day of August, 1884, the said maker was and ever since had been able, ready, and willing to pay to the holder the said interest, and that he had in Salem, when said interest became due, sufficient funds to pay, it, and was then willing, and tendered the amount and brought it into court and deposited it for the appellant. These several allegations, excepting place of residence of the appellant, were denied in a reply filed on behalf of the appellant, and which constituted the main issues tried. Evidence was taken in the case, from which the circuit court found that said installment of interest had been tendered; and the amount having been paid into court, decreed that it be applied to the payment thereof, and that the appellant pay the costs of the suit. I have examined the evidence, and am satisfied that the respondent R. H. Rutherford intended to pay such interest at its maturity. The appellant had been, before it accrued, negotiating with him to pay the whole claim. About the day it fell due the said respondent transmitted to her a check drawn by the Oregon & California Railroad Company on Ladd & Tilton, which he had obtained, amounting to $94.50, and two or three days thereafter sent her a draft on Allen & Lewis for $125; that several days before the said twenty-third day of August he wrote her inquiring as to whom he should pay said interest; that he made arrangements with a bankinghouse at Salem by which he might draw on it for funds. Subsequently to sending the check to appellant of $94.50, he received a letter from Messrs. McDougal & Bower, appellant's attorneys, bearing date August 26, 1884, in which the same was inclosed, and which stated, in effect, that the appellant would not receive it, as it was not the whole amount. The said draft was also subsequently returned. Thereupon he sent the balance due on said interest by express in the v.8P,no.13-57

care of Messrs. McDougal & Bower; that afterwards the summons in the suit was served upon him, and he then sent his brother down to pay it, but appellant would not receive the amount.

It is unnecessary to review the evidence further. There can be no question in my mind but that said respondent used all reasonable efforts to pay said interest; still I do not think they strictly or technically amounted to a tender. I understand the rule in such cases to be that the payor of a note must be at the place of payment at the time it matures ready and willing to pay the same, and that he should either deposit the amount of money due in some bank or other place to be paid, or keep it intact; and, in either case, if suit be commenced, carry it into court and deposit it there when he files his answer. These very nice requirements of the law upon the subject of tender were not observed by the said respondent in this case, neither was the appellant at Salem on said twenty-third day of August, 1884, to receive said interest, nor had she designated any person to whom it could have been paid. The result is that, as a matter of strict law, she was entitled to a decree for the payment of the amount of said interest, and to have the mortgaged property sold, and the proceeds applied for that purpose. The appellant's counsel further claim that, as a sequence, the entire debt became due, and that the appellant is entitled to a decree for the full amount, in accordance with the clause in said note which provides that the interest shall be paid annually, "and if not so paid the whole sum, both principal and interest, to become immediately due and collectible, at the option of the holder of the note." But I do not think they can maintain that position. I am of the opinion that such a clause in a note must be construed independently of the rules established by the lawmerchant. It must stand upon its own basis. It is a stipulation grafting upon the note another genus. Under the lex mercatoria, as expounded by the American courts, we may be compelled to conclude that the appellant need not aver or prove that she performed, upon her part, the acts by which payment of said interest could have been made, in order to maintain her suit; but it does not follow that she is relieved from averring and proving such performance in order to obtain the benefit of a provision foreign to that Code. The stipulation ought not to be rendered effectual, except in accordance with the principles of the general law of contracts. In that view of the matter, the appellant should not be heard to complain of the said respondents not being present at Salem on the day the interest fell due ready to pay it unless she was there ready to receive it, or had designated some party to whom he might pay it. He had, about a week before the time, written the appellant to know how or where he should pay the interest, and fair dealing required that she should have answered that letter. His going to Salem upon the day the payment was to be made, and remaining there ready and willing to pay the interest, might have answered the technical requirements of

the law; but, practically, it would have been an idle affair. It would have been of no benefit to the appellant. He could not have paid the money to any one, and if he had deposited it there it would have been of no advantage to the appellant whatever. She apparently did not want him to pay the interest, was anxious that the time in which he was to pay it by the terms of the note should run past; and it appears to me that she is endeavoring, by means of a mere technical rule, to perpetrate what might be a great hardship and wrong upon the respondents. The money was sent to her before she began her suit, and what more could she have honestly desired? Time was not of the essence of the contract. The stipulation could only have been intended for the purpose of saving the holder of the security the necessity of commencing a number of suits to obtain satisfaction of the debt, and was not expected to become operative unless the payor utterly failed to make the payment. It could not have been designed as "a trap for the unwary," and the attempt to take advantage of it in the manner in which the appellant is endeavoring to, under the circumstances disclosed by the evidence, is unconscionable; and if a court of equity were to aid in carrying out a scheme that would enable one party to gain an undue advantage over another, it would abuse the important mission entrusted to it. It may seem very absurd to determine that for one purpose a note has not been paid, and for another that the holder cannot claim a default upon a part of the maker by reason of a non-performance on his part, but the parties to the note have occasioned the seeming inconsistency by inserting in it a stipulation of a dissimilar nature. A promissory note is a written promise to pay a sum of money, at a certain definite time. The stipulation is to the effect that, in a certain event, a sum of money shall become payable; otherwise not. The instrument combines two heterogeneous features, one of which must be interpreted by the law-merchant, and the other by the ordinary law of contracts. In the latter case, the party who claims a breach must show performance upon his part. The clause referred to is no doubt lawful, and the view here taken may appear subtile; but it is fair and proper to counteract a technical claim that would work injustice by the employment of technicality. I concede that the construing of the different parts of the same instrument by different systems of law is the getting down very much to a nicety, but when parties jumble up their transactions by blending elements of a different character, refined discriminations have to be resorted to, especially when the matter comes before a court of equity, bunal that can never consistently, with the object and purpose for which it was established, assist in the perpetration of a wrong. am of the opinion that upon general equitable principles the appellant should not be allowed the relief she claims. Equity never enforces a penalty or forfeiture, nor the specific performance of a contract, except to subserve the ends of justice. The appellant has not

I

done equity in the affair, and is endeavoring to secure an unjust advantage. I think the appellant should have a decree for said amount of interest, with costs and disbursements, up to the time the money was brought into court, and that the same be applied upon said interest, and the said costs and disbursements allowed as above, and that the respondents pay any deficiency that may remain; and that, in default of such payment, the appellant have leave to enforce it by execution and sale of said mortgaged premises, and that each party pay one half of the disbursements upon appeal to this court; and the decree appealed from be modified in accordance with the principles of this decision.

LORD, J., (concurring.) In concurring in the opinion of my associate for the affirmance of the decree in this suit, I have deemed the questions involved of such importance to the business interests of the community as to require a statement of the grounds upon which my opinion is founded. It is an elementary principle that a court of equity has no power to make or alter the contracts of parties; but, ordinarily, its duties are, when invoked, to enforce them as made. Nor is the mere fact that the bargain is hard, or even unreasonable, sufficient of itself to induce the court to interfere; but there must be connected with the contract some element or matter of equitable jurisdiction, such as fraud, mistake, duress, undue advantage, or the like, either inhering in the contract or growing out of the age, relation, condition, or circumstances of one of the contracting parties,— which probes the conscience of the chancellor, and invokes the protecting jurisdiction of equity. More than a century ago Lord Chancellor HARDWICKE said:

"It is not sufficient to set aside an agreement in this court to suggest weakness and indiscretion in one of the parties who has engaged in it; for, supposing it to be in fact a very hard and unconscionable bargain, if a person will enter it with his eyes open, equity will not relieve him upon this footing only, unless he can show fraud in the party contracting with him, or some undue means made use of to draw him into such an agreement.” Willis v. Jernegan, 2 Atk. 251.

There may possibly be contracts, not infected with fraud or imposition, which are so grossly unreasonable and oppressive that, in view of all the circumstances, a court of equity may be induced to interfere and grant relief; but, as Judge STORY says, the court in such case is "certainly very cautious of interfering," and only "upon very strong circumstances," and only then, it would seem, where some undue advantage is sought to be taken of some strict rule of law. Story, Eq. Jur. § 331. It may, therefore, be said that when a contract has been entered into which is legally binding upon the parties, and a breach or default in any of its terms occurs, equity will not interfere and relieve the party in default of the performance of his promise or engagement unless he can offer some good excuse,-such as fraud or misconduct in the other party, or accident, mistake, and the like.

Turning, now, to the contract under consideration, can it be said that the stipulation complained of is not legal, or that it imposes any inequitable obligation? In effect, it simply provides that the interest shall be paid at stated periods of time, and in case of default in

the payment of such as agreed the creditor may insist upon the pay

ment of his whole debt at his option. This is but an absolute promise of the debtor or obligor to pay the interest when due, coupled with the condition that, failing in this, he will be at once bound, at the option of the creditor, to pay the whole debt,-all of which in fact he owes, and upon the faith of which promise and its performance the creditor parted with his money or property. Whether the credit shall be for the whole period or shorter is made to depend upon the promptness with which the borrower pays the interest according to his agreement. Time is made the essence of the contract, and although the general rule is that equity will not regard time in the performance of contracts, yet if the parties have seen fit to make it the essence of their agreement, equity will not interfere to aid the party in default, unless he can offer some good excuse recognized in equity for such default. Nor is there any hardship in making the contract so. By such a stipulation the party desiring to borrow is often enabled to secure a larger loan than he otherwise could upon the same property or other security, or to purchase property and contract for its payment upon more advantageous terms. To relieve him of his engagement when a benefit has thus been obtained upon the faith of his promise, and allow the interest to accumulate, the result might, in many cases, be to swell the dimensions of the debt beyond the value of the security or his ability to pay when the last day of grace had come. It might thus work, in some cases, a positive disadvantage and inequity to both parties,-to one the sacrifice or loss of his property, and to the other the loss of part, at least, of his debt, a catastrophe which, perhaps, might have been averted by a strict performance of the contract, and which we may suppose the calculations of the parties were designed to prevent when the contract was made. To my mind there is nothing in such a contract which is inequitable, unreasonable, or oppressive. If the party suffers in consequence of his own default, it is the penalty of his own negligence, and of which he has no right to complain in a court of equity; for, certainly, it furnishes no ground for such court to intervene and relieve him from the payment of the interest according to the conditions of his own agreement, unless his default occurred in consequence of some act of the other party designed to mislead him, and to prevent the payment of the interest at the time appointed by the contract, or by reason of accident or mistake. In Noyes v. Clark, 7 Paige, 179, the chancellor says:

"The parties had the unquestioned right to make the extension of credit dependent upon the punctual payment of the interest at the time fixed for that purpose; and if, from the mere negligence of the mortgagor in perform