Hannan v. McNickle

The Court. Ejectment; judgment for plaintiff for possession of the premises and seventy dollars, rents and profits; defendant appeals.

It is conceded that the plaintiff was the owner on August 29, 1883. On that day he gave to the defendant - a contract, in the following words: ■—■

“ San Francisco, August 29,1883, John Hannan, party of the first part, sold to James McNickle, party of the second part, lots 10, 11, 12, 23, 24, 25, in block 160, outside land, in the Hannan tract, for the sum of nine hundred -($900) dollars, United States gold coin, to be paid in monthly installments, defer payments to bear eight per cent per annum until paid. Title guaranteed to be perfect and clear of all encumbrance.

“John Hannan.

“James McNickle.”

This agreement, it is to be observed, says nothing about possession. But it .is in evidence that the defendant went into possession with the consent of the plaintiff; but whether this consent was verbal or in writing does not appear. The defendant “graded the lots, sunk a well, fenced in the lots, and built barns and other buildings for a milk business,” which improvements he testifies cost him $1,000, but which he states in his answer were “ of the cost and value of $950.” On the day the writing was executed the defendant says he “paid him ten dollars, the first payment”; but nothing further has been paid. On May 4, 1886, the plaintiff tendered to the defendant a sufficient deed of the property, and “ offered to deliver said deed on payment of nine hundred dollars and interest”; but the defendant did not pay any part of said sum, and the deed was riot delivered. The plaintiff then served upon the defendant a demand in writing for the possession of the property. Upon these facts we think that the judgment was right.

1. The contract does not fix any time for the payment [125]of the purchase price. Nothing can be gathered from the statement in the contract that the price was to be paid “ in monthly installments,” because there is nothing as to the amount of such installments. The most that can be said is, that there must be at least two installments. Nor can the amount of the installments be inferred from the statement in the defendant’s testimony that when the agreement was signed he “ paid him ten dollars, the first payment.” Aside from any other reason, the inference from such a statement is too shadowy to serve as the basis for the addition of a new term to the contract. The defendant does not say that any oral agreement was made on the subject. He does not even say that this first “payment” was the first “installment” under the contract. The contract did not require any installment to be paid in advance. And it may be that the ten dollars was paid because the parties supposed that it would serve to “ bind the bargain.” The proposition that the payment of a sum like nine hundred dollars was to be strung out over a period of seven years and a half, in sums of ten dollars each, is one that requires some definite evidence to support it. /'The time not having been fixed by the contract, if the purchase-money did not become due at once, or at the end of two months, it became due in a reasonable tirney (See Williston v. Perkins, 51 Cal. 554; Vance v. Pena, 41 Cal. 686; Luckhart v. Ogden, 30 Cal. 540.) And we think that a period of nearly three years was more than a reasonable time for the payment of a sum like nine hundred dollars.