170 P. 1066 | Cal. Ct. App. | 1917
Plaintiff appeals from the judgment and from an order made after final judgment. The pleadings, findings, and judgment are identical with those in Potter v. Spaulding, ante, p. 692, [
Where the judgment is in conflict with the findings, the remedy is by an appeal from the judgment. (Sharp v. Bowie,
In his action plaintiff seeks damages as follows: "Five thousand dollars for the detention by defendant and use of the real property"; five thousand dollars for the value of the personal property; ten thousand dollars "on account of being deprived of the control and use of his said property and of the profits thereof, and failure of defendants to comply with the conditions of their agreements to pay the purchase price for the property in question to plaintiff within the time agreed, or at any time"; that defendants be forever enjoined from setting up any claim or right to the possession or title to the said 942 1/2 acres of land aforesaid." The court found on sufficient evidence and the contracts provided that defendants should go into the possession and use of the real property; and that such possession and use were to continue pending the time required in curing the title. As to the personal property, the court found on sufficient evidence that title passed by bill of sale to defendants. Upon this branch of the case the court, in its opinion, printed in the record, calls attention to the evidence and shows very clearly that plaintiff was not entitled to damages. Said the court: "Plaintiff, however, is not entitled to any damages. By the terms of the contract the defendants were entitled to the possession of the land and personal property. Their possession was lawful until plaintiff made demand for possession. He served his demand on May 14, 1913, requiring defendants to give up possession within thirty days. Without waiting for them to comply with the demand, plaintiff took possession of the property on May 22, 1913. He has ever since remained in possession of the land. He is therefore not entitled to any damages for the use of the land. (See Marshall v. Caldwell,
The court found that plaintiff was entitled to foreclosure of said contracts, but not to a strict foreclosure, which latter would have carried with it the forfeiture of the eleven thousand dollars payment made by defendants. The foreclosure ordered was conditioned upon the failure of defendant United States Land Company to make full payment in accordance with said contracts as shown in No. 1739. This we think gave to plaintiff the full measure of relief to which he is shown to have been entitled. Upon this point the learned trial judge in his opinion said: "Plaintiff is entitled to foreclosure of said contracts, but defendants should be allowed a reasonable time in which to complete the payments for the lands, and on payment to receive the proper conveyances therefor. Time is not specifically made of the essence of the contracts, but after demand made by plaintiff, defendants should have paid within a reasonable time. They should have paid the $26,125 in cash not later than May 22, 1913, and executed the proper mortgage securing the final payment of twenty thousaid dollars with interest thereon at seven per cent per annum, payable within one year from the last-mentioned date. *711 They should also have paid the one thousand dollars by that date, May 22, 1913. The mortgage for twenty thousand dollars would have been due as early as May 22, 1914, and plaintiff should not now be required to accept a mortgage for that sum, but should be paid in cash.
"The defendant Spaulding or the United States Land Company should be granted sixty days from the date of judgment within which to pay the plaintiff the sum of $36,125, with interest thereon from May 22, 1913, at seven per cent per annum, compounded annually."
The judgment and order, so far as they affect plaintiff, except as to matters considered and decided in case No. 1739, are affirmed.
Hart, J., and Burnett, J., concurred.