Lynn v. Knob Hill Improvement Co.

SHAW, J.

The default of the defendant for failing to answer or demur to the complaint within the time prescribed by law was duly entered on May 19, 1914. On the following day the defendant served on the plaintiff a notice of motion to be relieved from said default, on the ground that it was taken through his mistake, inadvertence, and excusable neglect. - This motion was denied on October 1, 1914. On October 29, 1914, at the instance of plaintiff, the court entered judgment against said defendant for $678 and costs. The defendant appeals from the judgment, and also from the order denying its motion to set aside the default.

In support of the appeal from the judgment, the defendant claims that the complaint does not state facts sufficient to constitute a cause of action. The complaint alleges that on November 15, 1910, the plaintiff and defendant made an agreement in writing, whereby the defendant agreed to sell and convey to the plaintiff certain real property, for the sum of four hundred dollars, of which fifty dollars was then paid, and the balance was to be paid in monthly payments, of ten dollars a month, with interest at seven per cent per annum, payable quarterly, as evidenced by a certain note, a copy of which was incorporated into the contract. The note purports to be signed by the plaintiff, is dated December 15, 1910, and is for the sum of $350, with seven per cent interest from date, payable quarterly, and providing that if the interest was not so paid, the whole sum should immediately become due and payable. It was not declared to be payable upon any date, but merely “after date.” The complaint further alleged that “the following additional payments have been indorsed upon the back of said contract:

December 15, 1910 .......................$ 10.00

December 29, 1910 ...................... 200.00

August 27, 1913 ........................ 140.00

November, 1913 ......................... 10.00”

There is the further allegation that the plaintiff “has always been ready and willing to perform” and “has duly and fully performed all the conditions of the said contract devolv

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ing upon him to be performed, ’ ’ and has demanded performance thereof by the defendant, but that the defendant refused to comply with the contract or to execute to plaintiff a deed for the property, and that the defendant “never intended to convey said property to plaintiff, but used" said contract for the purpose to cheat and defraud the plaintiff out of the money heretofore paid, as above set out, and then sell and again convey or have said property conveyed to other parties than the plaintiff herein”; and that “said property has increased in value in the sum of two hundred dollars since the breach of said contract by defendants herein,” and that plaintiff has paid out eighteen dollars in taxes on the land, and “has incurred expenses in preparing to enter said land in the sum of fifty dollars. ’ ’