Maloney v. White

SHOEMAKER, J. Appellant Elizabeth White appeals from a judgment rendered against her and others in an action [788]for ejectment and to quiet title brought by respondents Martin J. Maloney and his wife Anna. Said judgment granted respondents’ prayer for ejectment, quieting title, delivery of possession and damages in the sums of $3,750 for unlawful detention of the property, $995.72 for unpaid taxes and $500 attorneys’ fees.

Respondent Martin Maloney, by his testimony and certain documents, established to the satisfaction of the trial court that under the written contract of sale of the property executed between the parties on August 2, 1951, as of September 1955 appellant was seven monthly payments behind and that he had received no further payments up to the date of trial, May 29, 1958; and that, contrary to the requirements of the agreement, appellant had not paid the taxes on the property from 1953 to date; had given a deed of trust on the property and had permitted two attachments to be levied on the property. It was stipulated that the deed of trust and attachments were in effect at the date of trial.

The damages for the unlawful detention were computed on a reasonable rental value of $125 per month, a sum which appellant said was reasonable in her testimony.

Appellant’s various contentions start with the complaint that respondents are not entitled to judgment because of their conduct under the agreement of sale and she asserts, that although the agreement provided that all payments thereunder be made at a certain branch of the Bank of America, respondents in breach of the contract and without her consent withdrew the account therefrom. Mr. Maloney denied this and stated that the bank had discontinued the account because appellant was not making payments.

Appellant, also, contends that despite her repeated demands, both oral and written, respondent refused to furnish her a statement of account, thereby preventing her from knowing where she stood with regard to her payments under the agreement and this, she maintains, excused her from making further payments. Appellant cites no authority in support of this novel position. On the other hand Mr. Maloney says that appellant never requested a statement, he never furnished one and further explained that the bank as each payment was made gave a receipt in a book provided for that purpose. We note, also, that in her testimony appellant stated she had both receipts and a record to prove payment up to and including January 1956 although the same were never produced.