225 P. 45 | Cal. Ct. App. | 1924
Plaintiffs began this action to quiet title to portions of three lots situated in the Blackstone Park Addition to the city of Fresno. The complaint is in the ordinary form of an action to quiet title, the plaintiffs resting upon a certain agreement of purchase held by them with the owners of the property. The prayer of the complaint is that the defendants be required to set forth the nature of their claim to the premises; that it be adjudged that the defendants have no title thereto, and that the title of the plaintiffs to the premises be quieted. The answer filed by the defendants consists of simple denials of the allegation of the complaint and an allegation that the plaintiffs entered into a contract with one C. C. Fleshman for the purchase of the property mentioned in plaintiff's complaint, and that said Fleshman thereafter assigned and sold all his right, title, and interest therein to the defendant D. Lillian Clark.
The action was tried principally upon an agreed statement of facts from which it appears as follows: That on or about the eighteenth day of February, 1920, the plaintiffs entered into a contract of sale and purchase with C. C. Fleshman, the grantor of the defendant D. Lillian Clark, for the property mentioned in plaintiffs' complaint, the price agreed upon in the contract being $5,125, payable as follows: $500 in cash, $125 on March 18, 1920; $125 on April 18, 1920; $125 on May 18, 1920, $125 on June 18, 1920, and thereafter $50 per month, payable on the eighteenth day of each and every month, together with the interest thereon, at the rate of seven per cent per annum, payable monthly until the full payment of the contract price mentioned above. These payments appear to have been made up to and including the eighteenth day of March, 1921, no payments having been made on the eighteenth day of April, 1921, nor on the eighteenth day of May, 1921. The plaintiffs on or about the thirty-first day of May, 1920, wrote the defendants as follows:
"Fresno, California, May 31st, 1921.
"Mr. C. C. Fleshman, "1627 Patterson Avenue, "Fresno, California.
"Dear Sir:
"You are hereby notified that pursuant to the terms of that certain contract dated February 18, 1920, between *764 D.C. Clifford and Maude A. Clifford, as sellers and C. C. Fleshman, as buyer, for the sale of the real property in the County of Fresno described as the north 50 feet of Lots 14, 15, 16 and 17 in Block 8 of Blackstone Park Addition to the City of Fresno, the said sellers elect to cancel and terminate the same because of non-performance of the terms thereof, on the part of buyer.
"Signed by CLIFFORDS and GEORGE COSGROVE, "Attorney for the Cliffords."
It also appears that on or about the twelfth day of June, 1921, the plaintiff wrote a second letter to the defendants, stating that they would insist upon prompt payment of the installments as they became due.
Thereafter and on the twenty-second day of June, 1921, the plaintiffs in this action began suit against the defendants to have the contract herein referred to declared forfeited. The cause was set for trial some time during the early part of November, 1921. On the fifteenth day of November, 1921, this case was settled by the defendant Clark paying to the plaintiffs all of the payments then due, to wit, seven monthly installments, accumulated interest, street assessment and taxes. The action herein referred to was thereupon dismissed.
Another monthly installment of $50 became due on the 18th of November, 1921. This installment was not paid, and on the seventh day of December, 1921, the action which is now before this court on appeal was begun by the plaintiffs for the purposes hereinbefore stated. The plaintiffs had judgment and the defendants appeal.
The stipulation as to the facts, in addition to what we have set forth, recites as follows:
"At the time set for the trial (of the first action herein referred to) a settlement was made by a payment of all delinquencies and the parties restored to their rights under the contract, — the defendant Lillian Clark restored to her rights under the contract. The payment was made by Mrs. Clark on the fifteenth day of November. The payment due November 18th was not paid. The first installment of taxes on the property for the fiscal year of 1921-1922 was allowed to become delinquent. On December 9, 1921, the sum of $50 was posted by the defendant Lillian Clark and duly tendered by the defendant. The installment of taxes due *765 at the time was $17.17. The $50 was tendered after the beginning of this action but before summons was served upon the defendant Clark."
The appellants center their attack principally upon findings numbered 6 and 7 of the trial court, which are to the effect, first, that the defendants have not performed the terms thereof but have failed and neglected to make the payment of the purchase price required by said contract and that the plaintiffs have at all times duly performed all the terms thereof, and, second, that the plaintiffs have elected to terminate said contract and that the defendants, by reason of nonpayment, have forfeited their rights to the same and that the contract is terminated and ended.
The contract provides that in the event of a failure on the part of the buyer to keep or perform any of the terms, conditions, or covenants to be performed by the buyer, the sellers shall, at their option, cancel and terminate the agreement and the sellers shall be relieved from all obligation in law and in equity to convey the premises and the money theretofore paid shall be kept and retained by the sellers, etc. It is also specified that time is of the essence of the agreement.
The stipulated facts show that the terms and conditions of the contract were not complied with, but the appellants, in their argument before this court, insist that the provision as to time being of the essence thereof was waived by the plaintiffs by reason of their having accepted payment of the amount due on November 15th, and their dismissal on that date of their action theretofore begun, to have the contract canceled and their title to the premises involved quieted; the plaintiffs and respondents insist that no such waiver is shown, but, on the contrary, that their actions show an insistence upon prompt compliance with all the terms and conditions thereof.
[1] At the time of the beginning of the action, in June, 1921, only three installments were due. On the thirty-first day of May, 1921, when the letter referred to was sent to the defendants, only two installments were delinquent. It thus appears that no considerable time elapsed after the installments became due before the plaintiffs began insisting upon their rights. There is no testimony concerning any *766
of the payments falling due prior to April 18, 1921, but the inference would be that the terms of the contract had been complied with just as agreed upon to that date; in other words, there had been no "course of conduct" by the plaintiffs in accepting payment of installments up to that date from which the trial court might infer a waiver of any of its terms. As above stated, the payment of seven installments was accepted when the suit was finally settled, four of which accrued after the date of the beginning of the action. There was but one payment, however, and only one acceptance. Does this establish a course of conduct justifying this court as a matter of law in holding that the stipulation as to time was waived by the plaintiffs? The leading case in this state on this question, where the subject of waiver is fully considered, is that ofBoone v. Templeman,
In De Bairos v. Barlin,
In the case of Stevenson v. Joy,
[2] Again, there is a matter of pleading involved in this action; section
In Leak v. Colburn,
In the case of Myers v. Williams, supra, it appears from a statement of the facts that monthly payments had been made for more than a year but that no installment was paid on time and that in each instance the vendors accepted tender of the money after it became due.
In the case of Leak v. Colburn, supra, payments were received from October 19, 1917, until July, 1918, of the installments in the sum of $15 monthly. The agreement provided also for the payment of interest which was not paid. There are also some other matters entering into that case not applicable to this. The testimony as to the payments of installments after they had become due was apparently introduced in both of these cases without objection and in that particular is similar to the stipulated facts introduced in this case, and if the rule announced in the case of Myers v. Williams, supra, and followed in the case of Leak v. Colburn, supra, is correct, the trial court in the case at bar could not have granted the appellants any relief on the grounds of waiver of any of the terms of the contract because such issue was not tendered for decision. While the *771 findings attacked in this case are a confusion of findings of facts and conclusions of law, they are sustained by the evidence because the admitted facts show conclusively that payments were not made as provided by the agreement. We are also not unmindful of the fact that the beginning of suit by the plaintiffs to enforce the terms of the contract, as hereinbefore set forth, constituted matters of which the defendants had notice and which the trial court had a right to consider in determining whether there was any conduct or course of action on the part of the plaintiffs from which it might infer a waiver of the provision as to time and from which the trial court might conclude that sufficient appeared from such conduct to indicate that the plaintiffs would insist upon prompt payment.
However harsh these contracts may appear and however reluctant courts may be to enforce forfeiture, under the circumstances as the record of this case is presented, we find no tenable grounds for disturbing the judgment of the trial court. It therefore follows that the judgment of the trial court must be, and it is hereby, affirmed.
Hart, J., and Finch, P. J., concurred.