Veterans' Welfare Board v. Burt

ALLYN, J.,

pro tem.

The defendant and appellant William Luther Burt in July of 1931 entered into an agreement with plaintiff and respondent to purchase a house and lot under the provisions of the Veterans’ Farm and Home Purchase Act. (Chap. 519, Stats. 1921, as amended by chap. 405, Stats. 1923; chap. 822, Stats. 1927, and chap. 1014, Stats. 1931. ) The total purchase price under the contract was $5,255, payable $262.75 cash and the balance in monthly instalments of $32.96, beginning September 1, 1931. The defendant husband paid the first instalment on October 31, 1931. No further payments were made or tendered until February 13, 1932, at which time said defendant offered a payment of $30. This money was subsequently returned to him. In the meantime and on January 19, 1932, the plaintiff board passed a resolution and mailed a copy thereof to defendant husband whereby it set the date of cancellation or forfeiture for February 19, 1932, unless all defaulted instalments were paid on or before that date. On February 19th a resolution declaring the forfeiture of the contract for default in payments was duly passed and the defendant husband notified by mail as provided by the contract. Regular statements showing the amount of past due and current instalments were mailed to said defendant on the first of each month. An action to quiet title (Code Civ. Proc., sec. 738) and to determine adverse claims (Code Civ. Proc., sec. 749) was thereafter brought against the purchaser and his wife. The answer pleaded the contract and a waiver of strict compliance as to the terms of payment. The trial court gave judgment for plaintiff. While a motion for new trial was pending amended findings were filed. The motion for new trial was denied and defendants appeal, relying upon four assignments of error: First, that the trial court erred in sustaining an objection to the proffered evidence that defendant husband had talked with the alleged head of plaintiff’s collection department in Los Angeles and that he had orally waived the time of payment for the delinquent instalments; second, that the trial court was in error in amending its findings pending the motion for new trial; third, that a general finding that title to the property was in the plaintiff and not in the defendants was not a sufficient finding upon the defense of

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waiver; and fourth, that the trial court should have granted an interlocutory decree rather than an absolute one.