McDonald v. Kingsbury

ALLEN, P. J.

The action was one to quiet title. The facts as found by the trial court are these: Plaintiff and defendants ’ assignor entered into a written contract on January 24, 1905, for the sale and purchase of real property at the agreed price of $900, of which $50 was paid in cash and the residue to be paid in monthly payments of $10 each, with interest at seven per cent, payable semi-annually, upon deferred payments, time being made of the essence. Plaintiff,

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by contract in writing, extended the time for the payment of the first four installments until May 20, 1905; that on said last-named date defendant paid $40, and subsequent and deferred payments were made, including interest, until September 26th; that no payments were thereafter made until December 5th, when the payments then in default were made and accepted by plaintiff. Thereafter, on 'February 24, 1906, the deferred payments with interest were again paid and accepted. No further payments were made. The first extension of time was given by one Broderson, the selling agent of plaintiff, which was ratified by plaintiff. Thereafter, Broderson, still a general selling agent of plaintiff, represented to defendant that, if necessary, she would carry defendant on account of future payments, and assured her that plaintiff would take no advantage of any failure to pay promptly; that plaintiff did receive payments, one of which "was made by the agent, long after the same were due, and never refused to receive such past-due payments until November 6,

1906,

at which date defendant tendered to plaintiff the amount, with interest, due upon such purchase, which plaintiff refused to accept, and thereafter brought this action. Defendant by answer set up the matters so found by the court in its findings with relation to extension of time and representations of the agent, and the trial court upon the hearing made an order that, if defendant would pay into court for plaintiff all the sums due, judgment would be entered in favor of defendant. Defendant made such payment, and the court found that such payment was a full, just and equitable compensation to plaintiff for all loss or injury- suffered on account of default in payments; that no damage had resulted to plaintiff on account of such default; that defendant had been guilty of no