Eddleman v. Deavel

SHINN, P. J.

This is an action brought by plaintiff vendor to terminate the rights of defendants Deavel in and to a residential property in South Pasadena, and to quiet title to the same. The theory of the action is that defendants defaulted under their contract to purchase the property. The sequence of events alleged in the complaint is the following: On March 1, 1947, defendants agreed to buy the property for $7,500, payable $60 down and $60 per month commencing April 1, 1947, which payments would include interest at the rate of

5

per cent per annum, payable monthly; on November 30, 1948, defendants were in default and were given notice demanding payment of the arrearage within five days; on July 6, 1949, defendants were notified that because of their default their rights under the contract were terminated; that $60 per month is the reasonable rental value of the premises; that defendants have remained in possession to plaintiff’s damage in the sum of $500. Defendants answered, alleging that plaintiff had waived strict performance by accepting payments after their due dates, that on December 6, 1948, defendants tendered the total amount of the accrued payments on the contract, the tender was refused, they later repeatedly offered to make all delinquent payments on account of the unpaid balance, which offers were refused and defendants, with the . knowledge and consent of plaintiff, had paid taxes for the

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years 1948, 1949 and 1950. Defendants made no tender of any sum at the time they answered, nor later. They sought no affirmative relief hut prayed only that plaintiff be awarded none. Plaintiff was given judgment terminating the contract and quieting her title. Defendants appeal.

The ground of appeal as stated in the brief of defendants is the following: “The decree rendered, upon the undisputed facts,' is contrary to the law of this jurisdiction.” The evidence disclosed that for two years defendants had been occupying the premises as plaintiff’s tenants at a rental of $55 per month. There was undisputed evidence that the rental value was $60 per month. On March 1, 1947, defendants agreed to purchase the property on the terms above stated. They made the 15 payments that fell due between May 1,1947 and July 1, 1948, inclusive. The April and May, 1948, payments were not made until May 13th and 25th; the June and July payments were not made until July 12th. In only four instances were payments made on or before the first day of the month. Plaintiff did not object to these delinquencies. Early in October Mr. Deavel wrote plaintiff, who was in the hospital, that they would get caught up in their payments in a short time. On November 30, 1948, plaintiff’s attorney wrote defendants that it appeared they did not intend to carry out their contract and that he was authorized to take legal action “unless definite arrangements made within five (5) days from date hereof.” On December 4th plaintiff’s attorney told Mr. Deavel that all his client wanted was to have the payments brought up to date; that he would talk with her and call back. He did not call. On December 6th Mr. Deavel mailed a cashier’s check for $300 to plaintiff’s attorney. Shortly thereafter the latter wrote defendants stating that their offer was not acceptable and demanding “payment in full plus costs and attorney’s fees on or before December 11, 1948.” The $300 cashier’s check was returned to defendants. Defendants deposited $300 for the opening of an escrow and on December 14th their attorney wrote plaintiff’s counsel stating that an escrow had been opened with the bank, and $300 had been deposited with instructions that upon receiving a grant deed for the property from plaintiff, with policy of title insurance, the remaining unpaid purchase price “shall be deposited in said escrow to the credit of Carolyn E. Eddleman.” Receiving no reply, defendants withdrew the $300 from the escrow. On July 5, 1949, defendants were served