Burmester v. Horn

KERRIGAN, J.

This is an appeal from a judgment in favor of defendant in an action brought to recover from him a sum of money paid by the plaintiffs on account of the purchase price of real and personal property situated in Sonoma County.

A brief account of the facts of the case is as follows: On January 14, 1913, Antonia Brandt, being the owner of the real property described in the complaint and of certain personal property, made a bill of sale and deed thereof to John W. Horn, the defendant, in consideration of which Horn entered into an agreement with her whereby within thirty days he was to pay her the sum of one thousand five hundred dollars, to be derived from a mortgage upon the property, and thereafter the sum of twenty-five dollars per month without interest for the period of seventy-six months if she lived during that period, otherwise the payments to cease at her death. Time was not made of the essence of the contract, nor did it provide, as is quite usual in similar contracts, for a forfeiture of the vendee’s rights in ease the installment payments were not punctually made.

Thereafter, on February 3, 1913, Horn agreed in writing to sell and convey to Otto Burmester and Cora Burmester, the plaintiffs herein, the same land and personal property for the

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sum of six thousand dollars, nine hundred dollars of which was to be paid upon the execution of the agreement, and the balance at the rate of fifty dollars or more a month, beginning March 1, 1913, together with interest on the deferred payments at the rate of six per cent per annum compounded quarterly. This contract further provided that in the event of a failure to comply with any of its terms, the unpaid balance should at once become due and payable, and that Horn should be privileged to terminate all the right, title, or interest of the Burmesters in the property, and to retain as liquidated damages the payments already made thereon. Time was made of the essence of this contract. The Burmesters were let into possession, and at the time this action was brought they had paid in all on account of the contract the sum of $1,365.82.

On May 6, 1913, Antonia Brandt brought a suit against Horn to set aside her deed to and contract with Horn, on the ground that they had been obtained from her through fraud and undue influence, she alleging in this behalf in part that at the time those instruments were made she had recently lost her husband; that she was old and infirm in body and mind; that she spoke and understood the English language with difficulty; that she was inexperienced in and practically knew nothing about business "affairs, and that Horn took advantage of her condition and made certain false and fraudulent promises and representations with the purpose and intention of defrauding her of the property so conveyed.