Sherwood v. Greater Berkeley Land Co.

California Court of Appeal Jun 29, 1929 No. Docket No. 6821.Published

Before: Nourse

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Holding. The court held that a vendor who accepts late installment payments waives the right to claim forfeiture without providing reasonable notice to the vendee, and that parol evidence is inadmissible to contradict the terms of a written contract.

Issues

Whether the trial court erred in overruling a demurrer to a complaint that allegedly failed to plead performance of contract terms.
Whether a vendor who accepts irregular payments waives the right to declare a forfeiture without notice.
Whether parol evidence is admissible to establish a security interest not mentioned in a written contract.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“where the vendor has waived the right to claim a forfeiture because of default in time of payment until after all installments are due, the condition cannot be revived except by reasonable notice to the vendee.”

“when the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms.”

NOURSE, J.

Plaintiff sued for the specific performance of a written contract for the sale of real property. The cause was tried before the court, sitting without a jury, and resulted in a judgment for plaintiff from which the defendant has appealed upon a bill of exceptions.

The complaint alleged the execution of the contract wherein the defendant agreed to sell certain lots of land to the plaintiff for the sum of $2,200. The contract was set out

in haec verba

as an exhibit to the complaint. It was further pleaded that the purchase price named was fair and adequate, and that, on July 30, 1927, the plaintiff tendered to the defendant the sum of $356.89, which was the full amount due on account of the purchase price, interest and other charges. At the same time demand for a conveyance was made upon the defendant and refused.

, The defendant demurred to the complaint both generally and specially on the ground that it did not appear that plain

[665]

tiff had performed the contract according to its terms or that the contract had matured on July 30, 1927, or at the commencement of the action. The demurrer was overruled and the defendant answered setting up the issue that plaintiff failed to perform in making the payments at the times specified and was in default at the time of the tender.

It is now argued that the trial court erred in overruling the demurrer and in overruling defendant’s objection to the reception of testimony on the ground that the complaint did not state sufficient facts. The objection to the complaint is that it failed to allege the very facts pleaded in defendant’s answer—the issue upon which was fully and fairly tried. Whatever may be our view upon the pleadings, we would not hold the ruling of the trial court prejudicial error unless we were satisfied that the demurring party was misled by the alleged defects in the pleading and the cause was not fairly tried on the merits.

(Stein

United Railroads,

Sherwood v. Greater Berkeley Land Co.

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NOURSE, J.

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