North Stockton Town Lot Co. v. Fischer

[101]

COOPER, C.

This action was brought to recover the amounts agreed to be paid by defendant to plaintiff, according to the terms of a contract for the sale of certain lands. Findings were filed and judgment entered for plaintiff. This appeal is from the judgment, on the judgment-roll and a bill of exceptions.

The contract was made April 5, 1895. It was therein agreed that the plaintiff would sell and defendant would buy lots 7 and 8, in block 3, in the Northern Addition to the city of Stockton, for the sum of $450, of which forty dollars was to be paid down and the balance in monthly installments of ten dollars per month until the whole should be paid. That should any payment become due and remain unpaid for thirty days, then the whole of the balance should immediately become due and payable at the option of plaintiff, and the amounts already paid should be "forfeited to plaintiff, and that time should be of the essence of the contract. The defendant paid the forty dollars, and made the monthly payments provided for in the said contract until the payments amounted to $110, and thereafter made no further payments. The last payment became due October 5, 1898. This action was commenced December 5, 1899, at which time no payment had remained due more than four years.

The main question urged by counsel is, that this must be treated as an action in equity, and that, as by the terms of the contract, the payments made by defendant were forfeited upon his failure to make the payments as therein provided, the plaintiff was guilty of laches in not bringing the action sooner; that the silence of the plaintiff for so long a time led the defendant to believe that plaintiff relied upon the forfeiture and that the payments would not be insisted upon, and for this reason the plaintiff should be estopped from maintaining the action. We do not so understand the law. The contract provided for the payments by defendant at certain definite times. He knew as well as plaintiff when the payments became due. He never offered to pay nor demanded a deed. On the other hand, he testified that he thought he had made a bad bargain, and that if he could get out of it he would do so. The plaintiff could not put the defendant in default without demanding payment and tendering a deed; neither could defendant put plaintiff in default without ten