Wilkinson v. Fisherman's & Canner's Supply Co.

CRAIG, J.

The action is one in claim and delivery of a Buick autotruck. The pleadings joined issue upon ownership and the right of possession. It appears without conflict that one J. A. Phillips, doing business under the name of San Pedro Garage, sold the truck to defendants under a conditional contract of sale. This contract provided for the final payment to become due on demand, which was made on the seventeenth day of April, 1920. The defendants then entered into an agreement 'with Phillips whereby they paid him part of this final payment and the time for payment of the balance was extended to the 17th or 18th of May, 1920. The court found that on the 18th of M'ay defendants were ready, willing, and able to pay and then offered the amount remaining due to Phillips, and later, on the same day, deposited the said sum to the credit of Phillips in the First National Bank of San Pedro; that Phillips retained this deposit; that subsequent to the deposit having been made and notice thereof to Phillips the contract of sale was assigned by Phillips to Schaefer for collection and then assigned by Schaefer to Wilkinson. The court further found the value of the use of the truck to be $350 and the value of the truck itself to be $750 and that the defendant was entitled to receive the return of the truck or its value, and rendered judgment accordingly.

Appellant’s brief fails to point out except in the most indefinite manner the issues involved or to indicate grounds relied upon for a reversal. It does appear, however, that the claim is made that from the evidence presented the trial court should not have found that the defendant made a

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legal tender of the balance due under the contract. It is unnecessary to give space to a consideration as to whether or not the tender should have been made on the 17th or the 18th of May.

On April 17th Phillips extended the time for payment of the balance then due and thus waived the provision that time was of the essence of the contract.

(Muncy

v.

Brain,

158 Cal. 300 [110 Pac. 945].) The single question, therefore, to be decided is, Bid the evidence justify the finding of the court that “on said eighteenth day of May, 1920, the said defendant, Fisherman’s & Conner’s Supply Company, offered to pay to said J. A. Phillips the balance of the purchase' price of said automobile and did on said eighteenth day of May, 1920, deposit the balance of the purchase price of said automobile as provided for in said contract in the First National Bank of San Pedro to the credit of the said J. A. Phillips doing business under the name of said San Pedro Garage and that said money so deposited by said defendant was accepted and retained by the said J. A. Phillips doing business under said name, and that after the offer by said defendant to pay the balance of said purchase price and after the deposit of said money in the bank to the credit of the said J. A. Phillips doing business under said name and after he had received notice of said deposit, the said J. A. Phillips attempted to assign said contract to S'. C. Schaefer who thereafter purported and attempted to assign the same to plaintiff but that at the time of said attempted assignment by the said Phillips, all payments provided for in said contract had been fully paid”?