Bellesfield v. Le Favor

DESMOND, J., pro tem. This is an appeal by the defendant from a judgment whereby, in an action for declaratory relief, the trial court awarded to the plaintiff the sum of $2,350. It is contended that the judgment is contrary to the law and the evidence, the further point being made that the failure of the trial court to find on the plea that the action was barred by the statute of limitations renders the findings insufficient to support the judgment.

On'May 1,1928, the respondent undertook to purchase from the appellant a one-half interest in the printing business conducted by him in the city of Los Angeles. The agreed purchase price was $5,340, payments to be made at the rate of $50 per month or more, at the option of the respondent. The sum of $1500 was paid down and thereafter monthly payments were made until a total of $2,350 was paid upon the purchase price. On October 22, 1929, the appellant endorsed upon the formal contract which had been signed by the parties the following notation:

[389]“October 22, 1929.

“The equity of $2350 at the above date will stand as a liability against the business and no default will be made by non-payment of principal or interest.

“W. L. LeFavor.”

On November 21, 1933, four years and one month after the above-quoted memorandum was signed by appellant, he made a written demand upon respondent requiring the payment to him within ten days of the sum of $3,640 “with interest thereon at 6% from September 22, 1928”, claiming that that amount was due him under the terms of the contract of May 1, 1928. By this demand, the appellant undertook to revoke and rescind any waiver of payment or extension of time of payment under the contract, and declared the contract in default. Notice was given in the demand that the appellant was at all times, and at the present time, ready, willing and able to perform his obligations under the contract, and to deliver to the respondent a bill of sale of a one-half interest in the printing business, closing with a statement to the effect that unless the amount mentioned were paid within the ten day period, “the said contract will be deemed discharged and all obligations thereunder released and all moneys paid thereunder shall be deemed forfeited as liquidated damages for the breach of said contract”.

Since the full purchase price for the one-half interest in the printing business was fixed at $5,340, and by the very terms of the demand it appeared that respondent had paid on account thereof the sum of $2,350, it is not clear why a demand was made for $3,640, or $650 more than the amount agreed upon. The respondent has not paid any portion of the amount demanded by appellant; her reaction to the demand appears in the complaint filed in this case on March 15, 1934, approximately four years and five months following the date of the notation entered by appellant on the contract of purchase.