The opinion
*535 On Petition eor a Rehearing.
Zollars, J.
It is insisted, in very strong and emphatic language, that the portion of the opinion holding that no notice to appellant, prior to the institution of the action, «was necessary, was not well considered. It is hardly necessary to say that the case was decided after a very careful and laborious consideration and examination by. the court. It by no means follows that because a question may not be elaborated at great length, with a copious citation of authorities, it has not been well considered. The Wisconsin court sustains the contention of appellant, that notice of the exercise of the option should precede the bringing of the action. This is the only authority appellant has been able to cite. And while we have a very high regard for that court, we think that the doctrine held by it upon this point is against the weight of authority, and is not sustained by sufficient reason. In support of his text, Mr. Jones cites Harper v. Ely, 56 Ill. 179; Princeton Loan and Trust Co. v. Munson, 60 Ill. 371 ; C undiff v. Brokaw, 7 Bradwell (Ill.) 147; Johnson v. Van Velsor, 43 Mich. 208 . Johnson v. Van Velsor, supra, was an action to foreclose a mortgage, as stated by the court: “ Both bond and mortgage contained the common interest clause giving the mortgagee an option to consider the whole due in case of a continuing default for thirty days,” etc. A bill filed to foreclose the mortgage charged that a considerable amount of interest had accrued and fallen due, and had remained due and unpaid for more than thirty days, and that pursuant to the provisions of the mortgage, the plaintiff elected to consider the whole amount due and payable, and so declared. It was claimed on the part of the defendants, that there had been no valid election to cause the whole amount to be immediately due and payable, because there had been no notice of such election before suit. The court did not regard the • point as of practical importance in the ease, but said: “According to the weight of authority a declaration in the bill *536 itself is sufficient, and formal notice of an election prior to the suit is unnecessary, and as we have seen, the bill contained, an explicit declaration.”
Cundiff v. Brokaw, supra, was an action to foreclose a mortgage. The condition in the mortgage was, that if any part or instalment of the interest should not be paid within six months after the same became due, then, and in that case, the whole of the note secured by the mortgage, both principal and interest then due, should, at the option of the mortgagee, become immediately due and payable, and the mortgage might be at once foreclosed. It was insisted b.y the defendant that the action could not be maintained, because it was not shown that notice had been given before the bill was filed that the mortgagee had elected to declare the whole sum due for the non-payment of interest. The court said : “ This objection we think not tenable. The mortgage required no such notice to be given. The mortgagor and those holding under him were bound to knowthat the mortgagee had reserved the right in the mortgage at his option to treat the principal as due, if default was made for over six months in the payment of interest, and that such a contingency was liable to occur at any time when default was made in payment for the length of time mentioned in the mortgage. If the mortgagor wished personal notice as a condition precedent to the commencement of a suit, he should have provided for it in the mortgage. On, the contrary, the mortgage provides that if default is made, the mortgage may be at once foreclosed. To require such a notice would be to add a condition to the mortgage not contained in it, and this we are not at liberty to do.”
This case covers fully the case before us. The conditions in the mortgages are precisely the same so far as relates to the option. The provision in the mortgage in the case supra, in relation to the foreclosure of the mortgage, makes no difference. If, in order that the whole amount might become due, the option should be exercised, it was also necessary to a foreclosure that the option should be exercised. The foreclosure for *537 the whole amount was dependent upon the whole amount having first become due.
In the case of Harper v. Ely, supra, it was stipulated in the bond that upon default of payment of interest, etc., the principal sum, at the option of the obligee, should become due. The obligee entered into possession of the real estate, and sold it under a power in the mortgage. It was held that it was not necessary to declare the option prior to the sale. The case is not in all respects like the one before us, but lends support to our ruling. The same may be said of the case of Princeton Loan and Trust Co. v. Munson, supra.
The case of Howard v. Farley, 3 Robt. (N. Y.) 599, seems to have been an action upon a bond, with conditions similar to those in the mortgage in suit. The court said: “ The plaintiff does not aver, in her complaint, that she elected to deem the principal due by reason of the non-payment of the interest. * * * If an election had been averred in the complaint, that the principal was due by reason of her option so to make it due, then the facts avérred would have entitled her to recover the whole amount secured by’the condition of the bond, and interest thereon.” The fair implication from this is, that such an averment is sufficient without an averment of notice to the obligor of the exercise of such option.
The condition in the mortgage involved in the case of Hunt v. Keech, 3 Abb. Pr. 204 , was the same in substance as the condition in the mortgage in suit. In that case the court said: “ The commencement of this suit is a sufficient notice of the determination that the plaintiff intends to treat the whole sum as due.”
The case of Young v. McLean, 63 N. C. 576 , is analogous in principle. That action was upon a bond in which the obligor promised to pay at a stated time $180, payable in currency, or in gold at the rate of $145 in currency for $100 in gold, at the option of the holder of the note. The defendants demurred, because the plaintiffs did- not aver in the declaration that the defendants had been notified of the option. *538 After speaking of cases of conditions precedent, the court said: “But shall the defendants be allowed to say that the terms, which they submitted to, and which were intended for the benefit of the plaintiff, shall operate as a condition precedent and defeat that intention ; and that, as the plaintiff did not make known his election before the bond fell due, or at all events, before suit brought, he now has no remedy? It is the debtor’s duty to seek the creditor, but this construction w;ould shift the burden from the debtor to the creditor, and make what was intended as a benefit, operate as a hardship upon the creditor.”
In the case of Princeton Loan and Trust Co. v. Munson, supra, it was said, speaking of an option clause in a trust deed: “To require a personal notice to the debtor, who, at the time, might be in distant or unknown parts, might create a very inconvenient delay in the collection of a claim evidently intended by the parties to be speedy; and the creditor might well have refused to accept a security trammelled with such a condition. However proper the giving of personal notice * * of an exercise of the option to make the whole indebtedness due, might have been, we could not hold it to be a condition precedent, to be complied with, in order to a valid exercise of the power of sale.”
We can not extend this case for a further citation of authorities, nor do we think it necessary, as those cited fully sustain our conclusion. As we said in the principal opinion, the mortgage contains no stipulation for notice of the exercise of the option. Such a notice might have been contracted for, and made a condition precedent, but it was not. Appellant was bound to know that by his defaults the obligee had the right to regard and treat the whole sum as due and collectible, and that nothing was required of him except the exercise of his own will. Upon making default,-it was the duty of appellant to. seek the creditor. It clearly was not the duty of the creditor to seek him and notify him of the results of his own laches. Such contracts as that contained in the mortgage may be hard *539 apon debtors, and in some cases they may be the results of the necessities of the debtor, but these considerations can not be allowed to turn aside fixed principles of the law. We have no authority to make contracts for parties, nor modify those made. Our duty is a plain one, to enforce contracts as made, when they come before us. We have re-examined the other questions discussed in appellant’s brief upon his petition for a rehearing, and are unable to reach conclusions different from those stated in the principal opinion, It would not be profitable to extend the case by a re-statement, or by a fuller statement of the grounds upon which those conclusions are based. If we had doubts about the correctness of the conclusions reached, we should very readily grant a rehearing. We are not satisfied that a rehearing should be granted, and hence the petition is overruled.
Filed June 27, 1884.