Dean v. Brower

PLUMMER, J.

The plaintiffs had judgment in an action for specific performance, from which judgment the defendants appeal. The cause is before us upon the judgment-roll alone.

The court found that the plaintiffs and defendants, on or about the sixteenth day of August, 1921, entered into an agreement of purchase and sale, whereby the defendants agreed to sell and deliver to the plaintiffs a certain government lease No. 87, and a furnished cottage on the leased premises, then used and occupied by the defendants, for the sum of $1500 with certain payments made at the time of the execution and delivery of the agreement, and the remainder thereof to be made in partial payments; that at the time of the beginning of this action there remained but one payment to be made upon the contract in the sum of $75. The court further found that the plaintiffs, at all times, had been ready, willing and able to make final payment, and that the defendants had refused to execute and deliver an assignment of the lease referred to, although they were able to make a good and valid assignment thereof. The finding of the court in this particular is as follows: That the plaintiffs, by said agreement, were to pay to the defendants the sum of $1500; that said plaintiffs have paid on account of said contract price $1405.98, and have been always ready, able and willing to pay the balance due thereon, according to the terms and conditions of said contract, and that plaintiffs have duly performed all the

[414]

conditions and covenants of said agreement on their part to he performed, and have demanded of the defendants that they deliver a good and sufficient assignment, etc., of the lease referred to.

The court further found that the agreement of sale between the parties was just and equitable, and that the price agreed to be paid was the reasonable value of the premises. The court further found that the plaintiffs had tendered to the defendants the balance due upon the contract.

The defendants based their appeal upon the contention that the plaintiffs had not complied with the contract, and that on December 27, 1922, the defendants gave notice to the plaintiffs that they were in default in making payments, and that while payments had been accepted at a later date than specified in the contract, unless the final payment was made within ten days the defendants would declare a forfeiture thereof. In response to this notice it appears in the findings that the plaintiffs deposited in the office of the Western Union Telegraph Company in Los Angeles a gum of money to cover the final payment and whatever interest was due thereon, for the uses and purposes of the defendants; that the defendant Mrs. A. Brower, was notified by the telegraph company of the money being there in the office, but was not told by whom it had been deposited ; that the defendant Mrs. A. Brower, did not go to the office after the money, and had not received the same at the time of the trial of this action.