Appeal from a judgment of the Superior Court of San Diego County, and from an order denying a new trial.

The facts are stated in the opinion of the court.

The court erred in allowing a judgment on the pleadings, as there being a conflict between the written and printed matter in the note and mortgage, the allegations of the answer tendered an issue as to the maturity of the note and mortgage. (Code Civ. Proe., sec. 1862; Civ. Code, sec. 1651; Vorwerh v. Nolle, 87 Cal. 236-39.) The mortgage not having been executed as security for the attorney’s fee cannot be extended to include such fee. (Monroe v. Folil, 72 Cal. 568.) The insertion in the note of the provision for an attorney’s fee made it a non-negotiable instrument, a mere contract in fact for" the payment of money. (Adams v. Seaman, 82 Cal. -636.) The note being a contract for the payment of money, it was payable upon demand, and demand was absolutely necessary before suit in order to support a judgment for such attorney’s fees. (Prescott v. Grady, 91 Cal. 518-21; Bindley v. Ross, 137 Pa. St. 629.) But the provision for the payment of an attorney’s fee is in reality a penalty or forfeiture for the nonpayment of the note and is, therefore, absolutely void. (Bulloch v. Taylor, 39 Mich. 137; 33 Am. Rep. 356; Witherspoon v. Musselman, 14 Bush. 214; 29 Am. Rep. 404; Merchants’ Nat. Banh v. Sevier, 14 Fed. Rep. 662. See, also, Prescott v. Grady, 91 Cal. 521; Civ. Code, sec. 1670; Muldoon v. Lynch, 66 Cal. 536; Eva v. McMahon, 77 Cal. 467-72; Brew v. Pedlar, 87 Cal. 443-50.) No damages for the detention of money beyond the interest allowed by law or the contract of the parties can be recovered. (Insurance Go. v. Piaggio, 16 Wall. 378; Lou-don v. Taxing Dist., 104 U. S 771.)

The denial in the answer that the note was due was but a conclusion of law, and raised no issue. (Drew v. Pedlar, 87 Cal. 451.) The second denial, for want of information and belief that plaintiff was the owner and holder of the note and mortgages sued on, which run to him on their face, is frivolous, and raises no issue. (Frost v. Harford, 40 Cal. 166; Fetch v. Beaudry, 40 Cal. 444; 3Ionroe v. Fohl, 72 Cal. 570.) The defense that prior to the commencement of the action no demand was made for the sum due was not well taken, as the promise to pay the interest quarterly was absolute, and upon default the principle became due without notice or demand (Whitcher v. Webb, 44 Cal. 127; Life Ins. Go. v. Shepardson, 77 Cal. 345; Hewitt v. Dean, 91 Cal. 5); and therefore a demand for payment should have been made before the commencement of the action. (Maddox v. Wyman, 92 Cal. 674, 676; Pierce v. Whiting, 63 Cal. 541, 542; Connor v. Dingley, 26 Cal. 19, 20; Marshall v. Ferguson, 23 Cal. 69; BricJcell v. Batchelder, 62 Cal. 632, 633; Stockton S. & L. Co. v. Donnelly, 60 Cal. 481.) Under the provisions of section 726 of the Code of Civil Procedure there can be but one action in this state for the recovery of any debt, or the enforcement of any right secured by mortgage; and in respect to the provision for counsel fees, as well as that relating to the payment of interest, and the effect of default thereon, and in all other respects, the note and mortgage are to be construed together as if they were parts of one instrument. (1 Jones on Mortgages, 71; Civ. Code, sec. 1642; Bricked v. Batchelder, 62 Cal. 632, 633; Ingoldsby v. Juan, 12 Cal. 564, 577; Patterson v. Donner, 48 Cal. 377; Maddox V. Wyman, 92 Cal. 674, 675; Uhlhorn v. Goodman, 84 Cal. 189.) The motion for judgment on the pleadings was properly granted. (San Francisco v. Staude, 92 Cal. 562.)