Grotheer v. Panama-Pacific Land Co.

[20]

RICHARDS, J.

The plaintiff and defendant on October 10, 1910, entered into a contract by" which the latter sold to the former and agreéd to convey to her a lot of land situate within the municipality of Oakland, at the corner of Sunnyvale Avenue and Stanley Road. The price of the lot was $1,580, part of which was paid upon the execution of the agreement, and th® balance thereof was payable in monthly installments.

The agreement contained the following provisions:

“Time is hereby expressly made of the essence of this agreement.

“The seller agrees as follows, viz.:

“ (a) To construct concrete curbing and cement sidewalks.

“(b) To grade and macadamize and concrete gutter all streets.

“(c) To lay sewers and water-mains.

“Improvements will be carried on with due diligence until completed, all at the expense of the seller.”

The plaintiff made her payments regularly until May, 1914, at which time she paid on account of principal the sum of $1,005, together with $172.85 for interest and $17.55 for taxes. At that time she called upon the secretary of the defendant, and stated to him that the company was not living up to its agreement with reference to the construction of street improvements; that she did not wish to find herself in the position of having completed her payments before all the street work was done, but at the same time she did not wish to stop them and have interest accrue against her. The secretary of the company replied that the position assumed by the plaintiff was a reasonable one, and promised to take up the matter with his board of directors; and some months thereafter, on December 11, 1914, the company communicated to the plaintiff a resolution adopted by it relieving her of further payments until the street work in front of her lot had been completed. No further work having been done by the defendant in connection with the plaintiff’s lot she, on November 16, 1915, rescinded the contract and demanded the return of the money paid thereunder by her, the refusal of the defendant to comply with this request resulting in the bringing of the present action.