Ezra J. Nixon and Larue O. Nixon v. H. W. Heers and H. W. Heers, Inc., a Corporation

This diversity action was based upon a promissory note, executed in Utah, providing that all payments of principal and interest were to be paid either in cash or at the election of the prom-isors, appellees herein, in notes secured by deeds of trust.

Following appellees’ default on the note, appellants, plaintiffs below, recovered judgment against the appellees. The judgment read:

and awarded $13,000.00 attorneys’ fees to be paid in cash.

Appellees filed no brief and elected not to appear at the argument of this appeal.

Where notes give to the promisor the kind of an election as shown by the note in this case, the promisor may not make the election after his default; rather, the promisee is entitled to payment in money. Texas & Pac. Ry. Co. v. Marlor, 123 U.S. 687 , 8 S.Ct. 311 , 31 L.Ed. 303 (1887); Meissner v. Ogden, L. & I. Ry. Co., 65 Utah 1 , 233 P. 569 (1924).

The judgment is modified by striking from the judgment the following words, “which amount may be paid and satisfied by defendants’ delivery to plaintiffs bonafide notes secured by valid deeds of trust,” so that the judgment will read:

Plaintiffs recovered $13,000.00 as attorneys’ fees in the trial court. This…