Leballister v. Morris

[700]

BURNETT, J.

The appeal is from a judgment in favor of defendants and the record is presented by the alternative method. Appellants have filed herein only what is denominated “Appellants’ Opening Brief.” Therein they have not set out the pleadings or the evidence in the case, but have contented themselves with the discussion of the legal question whether a vendee by failure to make payments at the time specified in a written contract for the sale of real property, wherein time is made of the essence thereof, does not subject himself to the penalty of forfeiture. The consideration, though, as thus presented is of no assistance in the absence of an exposition of the particular facts of the case. However, what has been omitted by appellant has been supplied by respondents, and as the statement by the latter is not denied by the former, we may virtually adopt it as a proper portrayal of the real situation. On August 8, 1919, a written agreement of the sale and purchase of a tract of land near Gridley, in Butte county, for the sum of $20,000 was executed by the parties herein. ' Four thousand dollars were paid by respondents at that time and it was agreed that the balance should be paid in thirty-two consecutive installments of $500 each on February 8th and August 8th of every succeeding year until paid, with interest upon deferred payments at six per cent per annum. The payments were to be made at the Gridley branch of the Rideout Bank at Gridley, and the bank was to receive the moneys, give receipts therefor and hold the deed, which had been placed in escrow. On February 8, 1920, respondents made the first payment of the balance amounting to $980. They made the next payment on August 9th of $965. The next payment, which became due February 8, 1921, respondents paid in two installments, $550 on February 8, and $416 on August 1, 1921. These payments were received by the bank and accepted by appellants. The next installment became due and payable on August 8, 1921. On the next day, appellants demanded payment of this money from respondents, who then had only $200, which they offered to pay; this appellants refused to accept on account, and threatened to terminate the contract. On the following day, as soon as the Bank of Gridley was open for business, respondents went to the bank and paid to the cashier for appellants the sum of

[701]