Fickbohm v. Knaust

California Court of Appeal Jan 27, 1930 No. Docket No. 3973.Published

Before: Thompson

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Holding. The court held that the defendant waived the contract's 'time is of the essence' clause by accepting deferred payments through her agent, and that the plaintiff was entitled to relief from forfeiture under Civil Code section 3275 as his default was not grossly negligent.

Issues

Whether the defendant waived the requirement for prompt payment by accepting deferred installments through her agent.
Whether the plaintiff was entitled to relief from forfeiture under Civil Code section 3275 for a non-willful, non-fraudulent breach.

Disposition. reversed

Quotations verified verbatim against the opinion

“There is little use in reiterating the maxim that “equity abhors forfeitures,” unless the principle is enforced when the facts warrant its application.”

“Having accepted deferred payments with implied notice of such default, the defendant could reinstate the provision of the contract requiring prompt payment, only by giving the plaintiff notice to that effect.”

THOMPSON (R. L.), J.

This is an appeal from a judgment upon a cross-complaint decreeing a forfeiture and quieting title to real property for default in the payment of installments due upon the purchase price thereof.

The defendant owned only an equity in a certain Los Angeles lot which she was purchasing on contract from another person. February 15, 1924, the parties to this action executed a written contract by the terms of which the defendant agreed to sell and the plaintiff agreed to buy the lot for $3,800 to be paid for as follows: $1200 cash, which was paid upon the execution of the contract. The balance was to be paid $35 “on the 15th day of March, 1924, and the balance in monthly instalments of equal amounts at the rate of . . . $420.00 per year,” together with seven per cent interest per annum on deferred payments. Time was made the essence of the contract. At the request of the plaintiff the defendant designated the branch, of the Bank of Italy of Los Angeles where she was- accustomed to do her banking, and authorized it to collect for her and credit to her account, the installments to be paid on this contract. Pursuant to this arrangement the following payments were made to this bank, accepted without objection and credited to the defendant’s account, to wit, $50.17 on March 8, 1924; $49.97 on April 23, 1924, and $49.77 on .June 3, 1924.

Before any default in payments occurred the plaintiff wrote to the defendant to ascertain what her exact interest in this lot was, claiming that his object in doing so was to pay up her entire equity, and that her failure to answer this inquiry led him to believe she was not insisting upon prompt payments of the installments. This letter was sent May 1, 1924, and read in part as follows: “ . . . Will yon kindly tell me what is your equity in it (the lot), and what are the payments required on your contract (with the title owner). In the near future I may be able to pay out your equity. I would appreciate hearing from you soon.”

On July 18, 1924, the defendant sent the plaintiff a written notice of rescission of the contract on the ground of delayed payment of monthly installments. The following day the plaintiff tendered to the bank and to the de

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fendant the entire amount due upon the contract including the installments for June and July, together with interest, which was refused.

Fickbohm v. Knaust

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THOMPSON (R. L.), J.

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