Drips v. Moore

VICTOR E. SHAW, J.,

pro

tem.

In this action plaintiff, by a complaint in the usual form in such cases, sought a decree quieting his title to a tract of land.

Judgment went for plaintiff, from which and an order denying his motion for a new trial, defendant' Moore appeals.

By answer Moore denied the material allegations of the complaint and, as a separate defense, alleged that on October 18, 1913, plaintiff was the owner of the land in question, at

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which time he and his wife entered into a contract with James F. and Pearl I. McKinney, whereby they agreed to sell and the McKinneys agreed to buy the property in accordance with the terms of such contract; that on December 31, 1913, the McKinneys, for a valuable consideration, duly assigned all their right, title, and interest in said contract to defendant Moore, who entered into possession of the property, which consisted of an orange grove, in the care of which Moore employed plaintiff, paying him wages for the service rendered; that said contract' contained a provision as follows: “It is understood and^agreed that time is of the essence of this contract, and in the event of a failure to comply with the terms thereof by the buyer, then the seller shall be released from all obligations in law and equity to convey said property and the buyer shall forfeit all right thereto and to all moneys theretofore paid under this contract. ’ ’ That all the terms of the contract required to be performed on the part of the McKinneys and their assignee have been duly performed, except that an installment of interest, due and payable on October 18, 1914, had not been paid as required by. the terms thereof; that notwithstanding such requirement, plaintiff waived the default; -that defendant is ready, able, and willing to pay said installment of interest, and offers to pay the same, followed by a prayer that “plaintiff be required to permit said defendant to pay said interest and that it be declared that said contract is an existing valid agreement.” For want of sufficient evidence to support the same, appellant attacks the finding of the court to the effect that plaintiff did not waive, or by his acts, conduct, or otherwise excuse the failure on the part of the defendant to pay the interest due on the contract on October 18, 1914. This contention is based upon testimony of defendant to the effect that upon the making of default in the payment of said interest plaintiff did not