Bledsoe v. Pacific Ready Cut Homes, Inc.

STURTEVANT, J.

Marie E. Bledsoe commenced an action against the defendant to obtain a decree setting aside a sale made by a trustee under a deed of trust. The defendant appeared and answered. A trial was had before the trial court sitting without a jury. The trial court made findings of fact in favor of the plaintiff. The defendant has appealed.

The defendant commenced an action in ejectment against the plaintiff and her husband. The plaintiff and her hus

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band appeared and answered and filed a cross-complaint. The latter pleading appears to plead the same facts in the same manner which are set forth by the plaintiff in the action first designated. The defendant answered the cross-complaint and by stipulation of the parties the latter action was tried with the action first designated. The trial court made findings in favor of Marie B. Bledsoe and her husband, and from a judgment entered thereon the Pacific Ready Cut Homes, Inc., has appealed.

Both appeals are contained in one set of transcripts and one set of briefs. In deciding the appeals it will not be necessary to confuse the subject matter by numerous repetitions of capacity. We will refer to Marie B. Bledsoe as the plaintiff and to Pacific Ready Cut Homes, Inc., as defendant.

The plaintiff purchased from the defendant on an executory contract a house and lot in Beverly Hills for $9,000. She paid down $400. She executed a mortgage on the house and lot in the sum of $3,600. She executed a trust deed to secure the payment of a promissory note in the sum of $4,600. The installment note for which the deed of trust was executed as security, required the payment by the plaintiff of $69 on the first of each and every month. It also required the payment of $500 on November 1, 192-4, and every six months thereafter. The $69 payments were made June 2, 1924-March 11, 1925, and the record presents no question regarding them. The $500 payable November 1, 1924, was never paid and the failure to pay it constitutes the sole question presented in the litigation. In the trial court and in this court it was the contention of the plaintiff that the payment of $500 was waived. That contention the defendant at all times controverted. The trial court made a finding to the effect that the payment had been waived. If that finding is supported by the evidence the judgment in each ease should be affirmed. If it is not supported by the evidence the judgment in each case should be reversed.