175 P. 865 | Or. | 1918
Apparently a priffted or typewritten form had been prepared to be used by salesmen; and the form seems to have been drafted on the assumption that in most eases a deposit of $150 would be paid with each application. However, in the instant case the parties probably adapted themselves to the financial situation of the plaintiff and instead of re
" declaring a forfeiture for breach of the conditions of a contract is not rescission of the contract. It puts an end to the contract and extinguishes it in pursuance to its terms just as performance extinguishes it. The act of taking possession under a forfeiture clause is not an act of rescission or in avoidance of the contract, but the assertion of a right growing out of it”: 13 C. J. 608.
The parties had a right to insert the forfeiture clause in the writing and since the plaintiff does not claim that the stipulation involves a penalty as distinguished from liquidated damages, the defendant is entitled to the benefit of the stipulation for a forfeiture and can retain the money paid to it, unless it can be said that the defendant has lost such benefit by failing properly to exercise its right: Snider v. Lehnherr, 5 Or. 386, 390; Holbrook v. Investment Co., 30 Or. 259, 265 (47 Pac. 920); Graham v. Merchant, 43 Or. 294, 304 (72 Pac. 1088); Mitchell v. Hughes, 80 Or. 574, 588 (157 Pac. 965).
In the writing now being examined it is said that “time is the essence of this agreement.” While it is true that a blank space appears before the word “days,” it is nevertheless obvious that the parties understood that Kemmerer was to make the “first payment of $150” in monthly installments of $10 and that they intended that time was to be of the essence of the agreement to pay such monthly installments. As already stated, the word “deposit” manifestly includes no more than the “first payment of $150.” It must be noted that the writing does not provide for the forfeiture of any moneys except the “deposit”; and it must also be remembered that the writing contemplates that when the “first payment of $150” is made a contract is to be issued in lieu of the “application receipt,” and the remaining $600 of the
The judgment is affirmed. Affirmed, 'i