California Restaurant Equipment Co. v. Weber

This is an appeal from a judgment for plaintiff in an action .in replevin.

July 10, 1924, the plaintiff and Frederick H. Weher entered into an executory contract by the terms of which certain equipment was purchased for a restaurant in Los Angeles for the sum of $2,136.82, which was partially paid on delivery of the personal property. The balance of the purchase price was to be paid, together with interest thereon, in specified installments. It was provided that the title to the property should remain in the vendor until the purchase price was fully paid, and that upon default in the payment of any installment when due the entire unpaid balance should thereupon automatically become due without notice, and the vendor was then authorized to repossess the property without process of law, in which event the money which had been paid upon the purchase price was deemed to have been applied in compensation for the use and depreciation of the property. It was further stipulated that “Time is expressly made the essence of this contract, but the acceptance by the vendor of any payment past due shall

Subsequently, on December 9, 1924, the vendee, died. Upon proceedings duly had, his wife, Grace E. Weber, was appointed and qualified as executrix of his estate, and as such took charge of the restaurant with the equipment which is involved in this action. Although the executrix made payments on the purchase price of said property aggregating the sum of $285, the estate was still in default. The restaurant business did not prosper. The executrix was unable to pay the deferred installments on the contract or the rent for the building. She closed the restaurant and abandoned the business. The plaintiff then took possession of the property involved in this action, pursuant to the provisions of the contract. The contract- was thereby terminated. (Northern Assur. Co. v. Stout, 16 Cal. App. 548 [ 117 Pac. 617 ].) A controversy exists as to whether the plaintiff then actually repossessed the property. While there is a conflict of testimony in that regard, we are of the opinion there is substantial evidence to support the implied finding that it did so. The executrix testified: “Q. Did you discontinue the operation of the restaurant? A. Yes, I did. Q. How many days before the plaintiff— A. Just a few. Q. Then the plaintiff came and took possession of the restaurant and equipment? A. Yes, that is correct.” With respect to taking possession of the property for a default in payments, Mr. Alkire, the credit manager of the plaintiff, testified: “The Court: Q. You say you repossessed this property? A. Yes, sir. . . . Q. Then she had closed it (the restaurant) up? A. Yes. Q. How many days before? A. Probably between three days and a week. . . . The landlord having called us two or three times to say the place was some five or six hundred (dollars) behind in rent, he wanted possession of it and I went to his place and got permission to leave the equipment in there until I could make some satisfactory arrangement to rearrange it and sell to Mrs. Weber or someone else. . . . She gave me the key to the place. . . . (She said) If I would rearrange the place economically . . . (she would) rebuy the place if I could stretch the payments over a long period of time and make the payments small. , . . She gave me the keys to the place

Upon repossessing the property the original contract was canceled. Mr. Alkire testified in this regard: “As far as our books were concerned there was (then) no old contract.” A new account was opened May 28, 1925, against Grace E. Weber, in the name of Weber’s Coffee Shop, which she adopted as the designation for her restaurant business. For a period of time she operated the restaurant in her individual capacity, making payments under the second contract, which were credited to her account, in the aggregate sum of $336. Misfortune continued to follow her enterprise. The business was not a success. Again she defaulted in the payment of her installments. She testified: “Q. Was a balance due on the contract? A. Yes, I think there, was.

In December, 1925, the plaintiff instituted this action and again repossessed the restaurant equipment by means of a writ of replevin. The defendant Grace E. Weber answered and filed a complaint in intervention in her individual capacity and also as a representative of her husband’s estate, affirmatively charging the plaintiff with a breach of the contract and praying for reimbursement for the money paid on account of the purchase price of the property. Arthur Cresse also intervened as a creditor of the estate. Upon trial the court found that the plaintiff was the owner and entitled to the possession of the property in question and accordingly rendered a judgment in its favor, without assessing any damages.

The defendant Grace E. Weber has appealed as an individual and also in her representative capacity. She challenges the sufficiency of the evidence to support the findings of plaintiff’s ownership and right of possession of the property chiefly on the ground that the default in the payment of installments on the purchase price was waived by subsequent acceptance of deferred payments.

There is no merit in this contention. Even though it be conceded that the execution of the new contract constituted a waiver of the delay in the payments of the installments then.due, default in the payment of subsequent installments occurred. Assuming that the plaintiff lawfully repossessed the property before the execution of the new contract of sale, Grace E. Weber, individually, as the succeeding vendee of the property, was in default. If the property was not so repossessed and the estate of the deceased vendee still retained its equitable interest in the property, Grace E: Weber, in her representative capacity, was in default of payments of subsequent stipulated installments. The' interest of the estate in the property was thereby forfeited.

The contract provided that “Time is expressly made the essence of this contract, but the acceptance by the vendor of any payments past due shall not be considered a waiver of this clause.” Under this express provision of the contract the acceptance of installments after they had

The appellant now claims that the plaintiff never actually repossessed the property before assuming to transfer it to her individually, and that the estate therefore retained an interest therein which .it could not be thus deprived of; that if all the money which she paid plaintiff subsequent to the execution of the second contract were applied on the first contract, it would fully pay the entire original purchase price and the estate would then be entitled to the property. Upon the execution of the second contract, however, a new obligation for $360 additional was incurred by Grace B. Weber. She claimed to have made the payments on this last contract from her own earnings. Section 1479 of the Civil Code provides in part: “Where a debtor, under several obligations to another, does an act, by way of performance, in whole or in part, which is equally applicable to two or more of such obligations, such performance must be applied as follows:

“ . . . Two. If no such application be then made, the creditor, within a reasonable time after such performance, may apply it toward the extinction of any obligation, performance of which was due to him from the debtor at the time of such performance; except that if similar obligations were due to him both individually and as a trustee, he must, unless otherwise directed by the debtor, apply the performance to the extinction of all such obligations in equal proportion; and an application once made by the creditor cannot be rescinded without the consent of the debtor.”

After the incurring of the new obligation to pay $360 for remodeling the restaurant at the request of Grace B. Weber individually, she was personally charged in an entirely different account with this sum together with the unpaid balance of the purchase price of the equipment. The plaintiff elected to credit all her payments which were made subsequent to the execution of the new contract to this last account, which he had a right to do pursuant to section 1479, supra. She made no request to apply these

The judgment is affirmed.

Plummer, J., and Finch, P. J., concurred.