Haberman v. Sawall

PRESTON, J.,

pro tem.

Plaintiffs commenced this action to recover from defendants the sum of $675, alleged to be due under a certain written agreement between plaintiffs and defendants.

The ease was tried by the court without a jury. Judgment went for the defendants; from this judgment plaintiffs prosecute this appeal.

The facts of the case are these: On September 15, 1919, the plaintiff, Jacob Haberman, entered into a written contract with R. S. Elliott and Ethel M. Elliott, his wife, for the purchase of certain lands owned by them in Fresno County, California, for $14,000, payable as follows: $2,500 cash; $500 April 1, 1920; $500 October 1, 1921, and $1,000

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annually thereafter, payable on October 1st of each year, until October 1, 1929, and the remaining $2,500 on October 1, 1930; all deferred payments to bear interest at the rate of seven per cent per annum, interest payable October 1, 1920, and annually thereafter; plaintiff having the option of paying any part, or all, before it became due.

The contract also provided for the right of forfeiture in case of default by the vendee; also, that on the full performance, a deed would be delivered, conveying the property free and clear of all liens and encumbrances, etc. All payments were made when due and this contract fully performed by the vendee, Jacob Haberman, from its date until the twelfth day of October, 1920, at which time the said Jacob Haberman and wife, plaintiffs in this action, entered into a written contract with the defendants, Emil Sawall and F. P. Leisman, wherein they agreed to sell and assign to the defendants all their right, title, and interest in and to the Elliott contract, above mentioned, on the following terms, stipulations, and conditions, to wit: That the unpaid portion of the purchase price to the Elliotts was the sum of $11,000 .principal and interest thereon from the first day of October, 1920; this sum should be paid by the defendants herein to Mr. Elliott at the times specified in the original Elliott contract. In addition to this, defendants were to pay to plaintiff, Jacob Haberman, $9,000, payable in annual installments, as follows: $500 cash; $2,000 on or before the twelfth day of November, 1920; $2,500 on or before the 10th of January, 1921; $1,000 on or before the 30th of July, 1921; $500 on or before the 1st of October, 1922; $500 on or before the first day of October of each year thereafter until the whole purchase price of $9,000 had been fully paid; all deferred payments, except the $2,000 due November 12, 1920, should bear interest at the rate of seven per cent per annum from date until paid, and the interest on all deferred payments, except the $2,500 payment due January 10, 1921, should be made on the 1st of October, 1921, and annually thereafter; defendants to have possession of the property on November 12, 1920; or, in other words, the defendants were to pay the annual installments and interest remaining due on the Elliott contract as they became due, and perform the other covenants and conditions of that contract, which Jacob Haberman had obligated himself