Schiffner v. Pappas

FRIEDMAN, J.

Appellants (whom we shall refer to collectively as “Pappas”) filed a notice of appeal from adverse judgments in superior court actions No. 13028 and No. 13046. These actions had been consolidated for trial. Pappas’ brief on appeal attacks only the judgment in No. 13046. We regard the appeal from the judgment in No. 13028 as having been abandoned, and the appeal in that action is dismissed.

Pappas entered into a contract with respondents (referred to herein as “the Schiffners”) to purchase a sawmill on deferred installment payments; to buy timber rights and to engage the Schiffners to log the timber purchased. The contract provided that on Wednesday of each week, Pappas would pay the Schiffners for all logs delivered and logging services performed during the preceding calendar week at specified rates per thousand board feet. The contract provided that default in any payment would give the Schiffners an option to terminate the entire contract unless Pappas elected to perform within 30 days after the Schiffners gave notice of default. The contract contained no provision for interest on tardy payments.

On Wednesday, September 27, 1961, Pappas failed to pay the Schiffners $17,538.40, comprised of sums due for logs delivered and logging operations performed during the preceding calendar week. Earlier, Pappas had failed to pay the September 1 installment on the sawmill purchase. On October 10, 1961, the Schiffners gave Pappas a notice of election to declare the latter’s default. The parties then entered into discussions which culminated in payment of sawmill purchase installments in arrears and an extension agreement dated November 9, 1961, covering the $17,538.40. The pertinent portion of the extension agreement read as follows: “Time for payment of the sum of $17,538.40 for logs delivered to payors during week ending September 22, 1961, is hereby extended to January 10, 1962; and in consideration of

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such extension of time, payors hereby waive the 30-day notice mentioned in paragraph 3 of Part IV of said written contract and consent that in the event of failure of payors to pay said last-mentioned sum on or before said last-mentioned date, Schiffner Brothers may thereupon proceed pursuant to said Paragraph 3 the same as if such notice had been given and the said default had remained uneured during said 30-day period ending on January 10,1962. ”