Nickel v. Looser

California Court of Appeal Oct 29, 1943 No. Civ. No. 6899Published

Before: Peek

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Holding. The court held that a party may assert a failure of performance as an affirmative defense to the enforcement of a note and deed of trust, regardless of the statute of limitations, and that the determination of laches is a question of fact for the trial court.

Issues

Whether a party may assert failure of performance as a defense to the enforcement of a note and deed of trust after the statute of limitations has run.
Whether the doctrine of laches bars the plaintiff's claim under the circumstances presented.
Whether the plaintiff waived her rights under the guarantee agreement by continuing to make payments.

Disposition. affirmed

Quotations verified verbatim against the opinion

“So long as defendants are permitted to seek enforcement of the obligation, the plaintiff may allege and prove the failure of performance by defendants as a defense.”

“Laches is a question of fact, on the evidence, and must be determined by a consideration of all the circumstances of each particular ease.”

“the statute of limitations cannot be invoked by defendants to bar the defense of the invalidity or nonperformance of the agreement as alleged and proved by plaintiff”

PEEK, J. This is an appeal by the defendants from a judgment and decree enjoining them from claiming or asserting any rights under a certain promissory note and deed of trust and cancelling the same. The judgment also quieted plaintiff’s title to the real property.

Pursuant to an oral agreement with plaintiff, Alfred H. Burton built a house on a certain lot owned by him in the city of Grass Valley, and thereafter, by an agreement of sale dated April 4, 1934, he sold the same to plaintiff for the sum of $1,975; $500 to be paid by plaintiff upon the execution of the agreement, and the balance in monthly payments until the purchase price was paid in full. Shortly after the execution of this agreement Burton requested further, sums of money, and arrangements were made between the parties and the local branch of the Bank of America to finance the balance of the purchase price. A part of said financing was one note and trust deed dated June 11, 1934, in the sum of $432. It is this note and trust deed which are involved herein and which plaintiff alleges were given in consideration of the execution by Burton of the following guarantee:

“To Whom It May Concern:

This is to certify that I, Alfred H. Burton, who constructed the stucco cottage for Velma Brock, at 134 Empire Street, Grass Valley, do herewith agree that should any defects arise through faulty workmanship or construction, for a term of [226]one year from this date, that I will repair same free from any cost to Mrs. Velma Brock.

In Witness Whereof, I have hereunto set my hand and seal this twelfth day of May, 1934.

A. H. Burton

John Looser, (Witness).”

Plaintiff alleges that within one year of the date of said guarantee she discovered defects in the house; that she so informed Burton, and was assured by him that the necessary repairs would be made, but that nothing was done; and that by virtue of such failure on his part to repair such defects she has been damaged in the sum of $600.

On January 4, 1935, Burton was adjudged insane, and on April 10, 1935, defendant Johanna Burton was appointed, and ever since has been, his guardian. Plaintiff further alleges she was under the belief that because of Burton’s insanity it would be but an idle act to give him further notice of the continuing defects; that during the month of December, 1937, she first learned of Johanna Burton’s appointment as guardian; that she thereupon demanded of the guardian that the house be repaired in accordance with said guarantee, and upon the refusal -of the guardian to comply with the terms thereof, she-stopped the monthly payments on the note and trust deed. ,

Nickel v. Looser

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