Woodruff v. Gann

WOOD (W. J.), J.,

pro tem.

Plaintiff seeks to quiet title to a certain tract of land by complaint in the usual form. One of several defendants named B. A. Gann, appellant herein, filed an answer and cross-complaint in which he set forth that plaintiff had agreed by contract in writing to sell to him the land in dispute and accept the purchase price in installments. He prayed for specific performance of the agreement to convey. The contract was executed on August 19, 1921. The total purchase price was stated as $5,656.45, of which $15 was paid in cash and the balance to be paid in monthly payments of $50 on the nineteenth day of each succeeding month, said payments to include interest. The contract contained this provision: “It is further agreed that time is of the essence of this contract and in event of a failure to comply with the terms and provisions hereof by the said Buyer, the Seller shall be released from all obligations in law or equity to convey said property, and at the option of said Seller the Buyer shall forfeit all rights thereto and to all payments theretofore paid hereunder and all interest of the Buyer in and to said lands by reason of this agreement shall thereupon cease and terminate and no tender or offer of performance by the Seller shall be necessary or prerequisite to his right to exercise any privilege or option hereby declared and that such right may be exercised upon default of the Buyer without such or any tender or offer of performance.”

It is admitted that appellant was far in arrears in his payments on April 2, 1924. On that date he made a payment of $50 to plaintiff who then told him that the balance in arrears must be paid “in a day or two.” On April 10, 1924, respondent served notice of forfeiture upon appellant, who now contends that his defaults were waived by the acceptance of the payment on April 2d. To properly pass upon this contention it is necessary to examine the evidence in some detail. During the entire time between August 19, 1921, the date of the contract, and April 10, 1924, the date

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of the notice of forfeiture, appellant had not paid a sufficient amount to pay interest on the principal sum due. The few payments he had made had been at irregular intervals. On January-17, 1923, a payment of $20 was made and thereafter nothing was paid until January, 1924. Respondent plainly told appellant in a conversation held on January 1, 1924, that the payments must be made or the contract foreclosed. Concerning this conversation Mr. Woodruff testified: “I told him I was going away, taking a trip to Florida, and when I came back if this money was paid in, this five or six hundred, and these monthly payments had been made, it would be all right; if not I was going to foreclose the contract. Q. Did you tell him when you were coming back from Florida? A. Along about the first of March.” The witness further testified: “I said, ‘Now, Billy, if you will pay this five or six hundred dollars, and you will transfer this lease (appellant had leased the property to a third party), the payment of the lease to our bank, and this money is paid in here and we can credit you with $50 on each—the bank’s note and my contract, why all right’; but I told him that we absolutely could not carry him any longer, that he had run—that he had promised us along in the spring when he borrowed the $1200 from the bank, he came in and asked for that money that he could pay up the Commercial Bank a note he owed them and he says, ‘I can’t take that lease out of the Commercial Bank until I pay them up, but if you will loan me $1200' I will get that lease and bring it down here and all the payments will be made here’; now that was along in the spring of 1923, and as I say, he never brought the lease in, never paid us a dollar.” The cashier of the bank referred to as “plaintiff’s bank,” had admonished appellant on several occasions prior to January, 1924, to keep up his payments. Respondent went to Florida, returning about March 1st. On January 30, 1924, appellant paid on the contract the sum of $500, of which $200 was applied on interest and the balance was for taxes. On April 2, 1924, appellant paid the sum of $50 to apply on the contract, but at that time respondent notified him that he wat in arrears something over $800, and that “the balance must be paid in a day or two.” Mr. Woodruff testified: “I then told him I would not carry him longer, that he must pay up at once or I would