34 P. 327 | Cal. | 1893
This is an action on a written contract entered into between the assignor of plaintiff and defendant for the sale and purchase of real estate, and is brought to recover a balance of $5,863.24 on account of the purchase price, and interest from August 2, 1887, at ten per cent per annum. Plaintiff had judgment, from which, and from an order denying a motion for a new trial, defendant prosecutes this appeal.
By the agreement which was entered into on the second day
According to the complaint and findings of the court, defendant asked for and received from Lotspeieh an extension of time for payment of the residue of the purchase price until on or about December 10,1889, when defendant refused to pay then or at any time, repudiated the contract, and declared himself no longer bound thereby. January 4, 1890, Lotspeieh transferred, assigned, and conveyed the land and his interest in the agreement to the plaintiff herein. At the trial it was stipulated “that the contract set out in the complaint was admitted, and the assignment as set out in the complaint was
1. If defendant failed to make payment of the purchase money as called for by the agreement, his vendor was at liberty*260 to declare a forfeiture, refuse a conveyance and retain the money already paid.
2. If the vendor declared such forfeiture, and refused a conveyance, defendant had a right, although he had not paid in full, to enter as a tenant, and to purchase, as hereinbefore specified.
3. If the vendor waived a forfeiture, as under a covenant for his own benefit he might well do, the exception, which only applied in case of forfeiture, had no application.
4. The vendor, by bringing an action to recover the purchase money remaining due and unpaid, waived his right under the contract to treat his agreement to convey as null and void, and hence the exception, which only applied in case of forfeiture, had no application.
If we are in error in these views of the force and effect of the contract, it still remains to be said that, the exception in the clause providing for a forfeiture being for the benefit of defendant, and in the nature of an option, he was at liberty to avail himself of or to reject it, at his pleasure. According to the complaint and findings, which are supported by the testimony, he did repudiate the contract, and there is not in his answer or in the testimony any suggestion that he ever entered into possession as a tenant of his vendor, or claimed any right or evinced any desire so to do. It follows from these views that the demurrer to the amended complaint was properly overruled, and that the contentions of appellant upon the same questions as presented at the trial by numerous exceptions cannot be maintained. The .assignment to plaintiff is averred in the complaint and not denied by the answer. There was evidence in support of the findings, and it can servé no useful purpose to refer to them in detail. The judgment and order appealed from should be affirmed.
We concur: Vanclief, C.; Belcher,C.
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.