Bodem v. Friedman

DOOLING, J.

Plaintiff appeals from a judgment refusing to quiet her title to a parcel of real property. On November 1, 1940, plaintiff and appellant, Gertrude Bodem, and her husband entered into a written contract with defendants and respondents Friedman and Hays for the sale of the real property to respondents for $5,132. Two hundred and eighty-two dollars was paid on the execution of the contract and the balance was provided to be paid in monthly instalments of $40 per month until the balance including interest at the rate of 6 per cent per annum on decreasing balances had been paid in full. Time was expressly made of the essence and the contract provides that the performance by the purchasers of all the terms of the contract is a condition precedent to the obligation of the sellers to perform the agreement on their part and that in the event of the failure of the purchasers to comply with any of the covenants of the agreement the sellers, without notice to the purchasers, shall be released from all obligations in law or in equity and the purchasers shall forfeit all their rights under the contract.

The purchasers agreed that they would pay not less than $40 on the first of each month; that they would pay all taxes on the property; that they would keep the buildings on the property insured against loss by fire; that they would make no alterations in the buildings on the premises without the written consent of the sellers; and, that all deferred payments should bear interest at the rate of 6 per cent per annum payable monthly. Appellant claims that respondents were guilty of breaches of each of the above recited covenants. We need not discuss these claims in detail because the trial court found that their performance had been waived by the con

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duct of the sellers in 1946 just prior to the time that the quiet-title action was filed by them on February 19 of that year. We are satisfied that the evidence supports this finding and that this finding sufficiently supports the judgment.

There is evidence that about January 20, 1946, respondent Friedman talked to Mrs. Bodem on the telephone and told her that respondents “were in a position to pay off the property, and we would appreciate if she could go down to the California Abstract Company there with the deed and they would clear up the whole matter there, so she says, ‘Well, that is grand, Mr. Friedman, and I know that Mr. Bodem will be pleased to hear that too.’ She says, ‘However, he’s in the south now, and as soon as he comes back, I’ll have that matter taken care of.’ ”