Myers v. Williams

MELVIN, J.

Defendant appeals from a judgment and an order denying his motion for a new trial.

The suit was one whereby it was sought to forfeit defendant’s rights under a contract for the sale of real property and to recover possession of said realty.

[302]

The agreement dated September 25, 1911, fixed the price of the land at two thousand eight hundred dollars. There was to be a payment of twenty dollars at the date of the agreement and twenty dollars on the first of each month beginning November 1,1911, for one year; after which, beginning November 1, 1912, the monthly payments were to be $25 each. The contract provided for the payment of interest which was first to be taken from the monthly installments, the residue to be applied upon the principal. There was also a provision-that if the vendee failed to pay any installment when due, the vendors should be released from all obligation to convey and the purchaser’s rights should be forfeited. Time was made of the essence of the contract. The monthly payments were made for more than a year, but no installment was paid on time. In each instance the vendors accepted tender of the money after it became due. The installment of $25 due January 1,1913, was not paid until February 10, 1913. From this payment, at the request of Williams who was so bound under the agreement, the taxes were paid, leaving a balance to be applied on the purchase price. On March 19, 1913, the vendee paid $7.30 and on the 24th of the same month $7. These payments were accepted. On April 1, 1913, another installment became due and on the following day Williams tendered forty dollars which plaintiffs refused to accept. They immediately employed an attorney and on April 9th instituted this suit, which was successful in the superior court.

Appellant presents three reasons, each of which he says will justify a reversal of the judgment. He says that (1) the complaint does not contain averments of facts sufficient to constitute a cause of action; that (2) plaintiffs by the acceptance of many installments after they became due and by the crediting of defendant with sums less than the indebtedness under the terms of the agreement, had waived the right of forfeiture; and that (3) after said alleged forfeiture plaintiffs did not give defendant a definite and specific notice of their intention strictly to enforce the terms of the contract, and defendant therefor was not in default when the action was commenced.