Brown v. Butts

MUSSELL, J. Plaintiff appeals from a judgment in Ms favor in an action brought by him to quiet title to certain real property in the county of Riverside. On October 28, 1939, plaintiff, as owner, agreed to sell and defendant to buy the property involved for the total purchase price of $750, payable as follows: “$30.00 cash, receipt whereof is hereby acknowledged by said party of the first part, and the remainder of $720.00 to be paid in monthly installments of $10.00 per month, beginning November 28, 1939, said payments to be applied first on interest at 7 % per annum on the [749]unpaid balance of principal, and the remainder on said principal, with the further provision that when the balance of principal has been paid, the party of the first part agrees to make a deed to the said party of the second part.” The agreement, which was in writing, contained provisions for the payment by the purchaser of fire insurance and taxes, and it was further provided therein that if an action was instituted thereon, the purchaser promised to pay such sum as the court might fix as attorney’s fees.

The defendant took possession of the property and made the monthly payments due thereon until January 31, 1942, and upon several occasions subsequent to said date and within 90 days thereafter the defendant tendered and offered to pay plaintiff all sums due. Plaintiff refused the tendered payments and thereafter no further offer was made by the defendant until May, 1942, when all payments on principal then due were tendered and offered to plaintiff by defendant. Plaintiff refused this offer and filed the within action to quiet title. The complaint is in the usual form and the answer sets forth the agreement of sale and the refusal by plaintiff to accept the payments tendered shortly after January 31, 1942. It is alleged therein that on or about June 15, 1942, defendant again offered to fully perform her obligations under the contract ; that the offer was again refused and that ever since said date plaintiff has refused to accept the payments due under the contract.

No reporter’s transcript has been filed herein and the appeal is prosecuted on the judgment roll alone. Under such circumstances, a reversal cannot be ordered except for a fatal error appearing therein. The only question presented is whether the findings support the judgment and the findings must be given such construction as will uphold rather than defeat the judgment. (Oakley v. Rosen, 76 Cal.App.2d 310, 312 [173 P.2d 55].) We must also assume that the issues upon which findings were made were properly before the court and that evidence was introduced without objection which would support the findings as made. (Derrer v. Keeler Gold Mines, Inc., 63 Cal.App.2d 606, 611 [147 P.2d 102].)