Spring Estate Co. v. Cohen

KERRIGAN, J.

This is an appeal from a judgment in favor of the plaintiff and cross-defendant and against the defendant and cross-complainant, by which the rights of the latter in three several agreements to purchase real property were declared to he forfeited, and quieting the plaintiff’s title thereto.

On July 1, 1912, plaintiff’s predecessor in interest sold to defendant and defendant agreed to buy three lots of land in a suburban subdivision named Thousand Oaks, situated in the county of Alameda, for $6,500, payable in installments. During the years 1912 and 1913 defendant paid on account of said purchase the sum of $1,170, this sum being the

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aggregate of several installments, many, if not practically all, of which, were paid after their due date and were accepted by the vendor. On July 1, 1914, the parties entered into a new arrangement, under the terms of which a separate contract was executed for each of said three lots, and the aforesaid sum of $1,170 paid on account of the contract of July, 1, 1912, was divided and applied about equally as a credit upon these several new contracts. Thereafter no further payments were made, and on August 26, 1919, the plaintiff in writing notified defendant of his default, and that unless he complied with the terms and conditions of the contracts on or before September 5, 1919, plaintiff would take such steps as it deemed necessary to protect its interests. Defendant made no reply to this letter, and on September 5, 1919, plaintiff notified defendant that it elected to stand on thé terms of the contracts, to retain to its own use the amounts paid by defendant on account thereof, and to treat defendant’s- rights thereunder as terminated.

The contracts provided that if the purchaser should be in default in any of the payments provided to be made under the contracts for the period of sixty days the purchaser should forfeit all rights thereunder, and all payments theretofore made should be regarded as liquidated damages, to be retained as such by the vendor, and that the latter was entitled at once, upon demand and without further notice to the possession of said lots. The contracts also provided that a notification to that effect in a registered letter from the vendor to the purchaser, mailed to the address given in the contracts, should constitute legal notice of the forfeiture. Time was expressly made of the essence of the contracts. .