California Restaurant Equipment Co. v. Weber

THOMPSON (R. L.), J.

This is an appeal from a judgment for plaintiff in an action .in replevin.

July 10, 1924, the plaintiff and Frederick H. Weher entered into an executory contract by the terms of which certain equipment was purchased for a restaurant in Los Angeles for the sum of $2,136.82, which was partially paid on delivery of the personal property. The balance of the purchase price was to be paid, together with interest thereon, in specified installments. It was provided that the title to the property should remain in the vendor until the purchase price was fully paid, and that upon default in the payment of any installment when due the entire unpaid balance should thereupon automatically become due without notice, and the vendor was then authorized to repossess the property without process of law, in which event the money which had been paid upon the purchase price was deemed to have been applied in compensation for the use and depreciation of the property. It was further stipulated that “Time is expressly made the essence of this contract, but the acceptance by the vendor of any payment past due shall

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not be considered a waiver of this clause. ’ ’ The principal purchase price had been reduced to about $700; The vendee was in default of payments of several installments.

Subsequently, on December 9, 1924, the vendee, died. Upon proceedings duly had, his wife, Grace E. Weber, was appointed and qualified as executrix of his estate, and as such took charge of the restaurant with the equipment which is involved in this action. Although the executrix made payments on the purchase price of said property aggregating the sum of $285, the estate was still in default. The restaurant business did not prosper. The executrix was unable to pay the deferred installments on the contract or the rent for the building. She closed the restaurant and abandoned the business. The plaintiff then took possession of the property involved in this action, pursuant to the provisions of the contract. The contract- was thereby terminated.

(Northern Assur. Co.

v.

Stout,

16 Cal. App. 548 [117 Pac. 617].) A controversy exists as to whether the plaintiff then actually repossessed the property. While there is a conflict of testimony in that regard, we are of the opinion there is substantial evidence to support the implied finding that it did so. The executrix testified: “Q. Did you discontinue the operation of the restaurant? A. Yes, I did. Q. How many days before the plaintiff— A. Just a few. Q. Then the plaintiff came and took possession of the restaurant and equipment? A. Yes, that is correct.” With respect to taking possession of the property for a default in payments, Mr. Alkire, the credit manager of the plaintiff, testified: “The Court: Q. You say you repossessed this property? A. Yes, sir. . . . Q. Then she had closed it (the restaurant) up? A. Yes. Q. How many days before? A. Probably between three days and a week. . . . The landlord having called us two or three times to say the place was some five or six hundred (dollars) behind in rent, he wanted possession of it and I went to his place and got permission to leave the equipment in there until I could make some satisfactory arrangement to rearrange it and sell to Mrs. Weber or someone else. . . . She gave me the key to the place. . . . (She said) If I would rearrange the place economically . . . (she would) rebuy the place if I could stretch the payments over a long period of time and make the payments small. , . . She gave me the keys to the place