Myers v. Garaventa

ADAMS, P. J.

On October 31, 1944, Margaret Garaventa was the owner and operator of a tavern at Mokelumne Hill in Calaveras County known as “Peek Inn.” On that date she entered into three contracts of sale with Edward Myers and Gladys L. Myers which are in effect but one,, wherein she agreed to sell, and Mr. and Mrs. Myers agreed to buy: (a) the real property upon which the tavern was located, together with improvements thereon, for $7,000; (b) all the vendor’s stock of liquor, beer, wines and other stock in trade, approximating in value $3,000; and (c) the tavern business including the good will as a going concern, the fixtures, and all contracts, engagements, benefits and advantages in respect thereto, including the liquor license, for $5,000, a total of $15,000. It was also provided that time was of the essence of the contract, and the usual forfeiture clauses were set forth, but section 16 provided: ‘ ‘ Ten days shall be considered a reasonable time after notice to retake and if the buyer tenders to seller the full amount, due, owing and unpaid after notice of retaking by the seller, seller shall execute proper instruments vesting title in buyer.”

The buyers made down payments amounting to $3,600, and went into possession of the tavern. Under the contract they

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were to pay $500 per month, and payments in addition to the $3,600, amounting to $2,100, were made, and though not made on the due dates no objections to the delays were made by the seller. On the contrary, she willingly gave extensions, stating that the buyers were to make payments when they could. However, on June 14, 1945, Mrs. Garaventa, without having at any time expressed dissatisfaction with the course of affairs, served upon plaintiffs a notice of rescission of the contract. Two days later plaintiffs tendered to her the full amount due, and when same was refused deposited the money in escrow and thereafter maintained the deposit.

Plaintiffs then brought this action for specific performance, which was decreed by the trial court. That court found that payments amounting to $5,700 had been made by plaintiffs, and that defendant accepted them without objections; that immediately after the execution of the contract she expressly stated to the Myers that they need not worry about making prompt payments and that she would not exact any forfeiture if they unavoidably became unable to perform on time; and that thereafter, until June 16, 1945, she repeatedly stated to plaintiffs that she would not take advantage of the provisions of the contract or attempt forfeiture thereunder, and that at no time prior to June 16, 1945, did she give notice of, or state that she would insist upon, strict performance of the agreement. It further found that on or about June 16, 1945, plaintiffs found a purchaser for the property for $20,918.92, and entered into a contract with him for sale of same, and that such contract was made with the express consent of defendant who stated that she would take no advantage of plaintiffs on account of such sale, and that in reliance upon her statements plaintiffs gave possession to the purchaser, Otis B. Coen, and accepted from him a payment of $3,418.92, and transferred to him title to the personal property. Also it was found that plaintiffs paid upon the installments due for the months of March and April, 1945, the sum of $300 each, and that the failure to pay the balances of $200 was expressly excused by Mrs. Garaventa. It was recited in said findings that plaintiffs had failed but had not neglected nor refused to pay any installment or any interest or insurance, but that failure to pay was excused by defendant by her acts and conduct which lulled plaintiffs into a sense of security. As for some small alterations in the premises which Mrs. Garaventa complains of, they were made with her knowledge and consent.