McDonald v. Kingsbury

by contract in writing, extended the time for the payment of the first four installments until May 20, 1905; that on said last-named date defendant paid $40, and subsequent and deferred payments were made, including interest, until September 26th; that no payments were thereafter made until December 5th, when the payments then in default were made and accepted by plaintiff. Thereafter, on 'February 24, 1906, the deferred payments with interest were again paid and accepted. No further payments were made. The first extension of time was given by one Broderson, the selling agent of plaintiff, which was ratified by plaintiff. Thereafter, Broderson, still a general selling agent of plaintiff, represented to defendant that, if necessary, she would carry defendant on account of future payments, and assured her that plaintiff would take no advantage of any failure to pay promptly; that plaintiff did receive payments, one of which "was made by the agent, long after the same were due, and never refused to receive such past-due payments until November 6, 1906, at which date defendant tendered to plaintiff the amount, with interest, due upon such purchase, which plaintiff refused to accept, and thereafter brought this action. Defendant by answer set up the matters so found by the court in its findings with relation to extension of time and representations of the agent, and the trial court upon the hearing made an order that, if defendant would pay into court for plaintiff all the sums due, judgment would be entered in favor of defendant. Defendant made such payment, and the court found that such payment was a full, just and equitable compensation to plaintiff for all loss or injury- suffered on account of default in payments; that no damage had resulted to plaintiff on account of such default; that defendant had been guilty of no grossly negligent, willful or fraudulent breach of duty; that defendant had a valid and subsisting "right to complete such purchase and to be relieved from forfeiture. Judgment was entered accordingly, from which, and an order denying a new trial, plaintiff appeals.

It is contended by appellant that the finding that Broderson was the general agent of plaintiff when she made the representations and assurances to defendant, upon the, faith of which she acted, has no support. That Broderson was plaintiff’s selling agent is not questioned; that, assuming to

act for plaintiff, she extended the time for payment of the first four installments and executed a supplemental contract, signed by herself, and plaintiff with full knowledge ratified such act. Plaintiff intrusted to Broderson the duty of looking after defendant’s deferred payments, which is clearly shown by her repeated calls upon Broderson to inquire why defendant was lax in payment. That plaintiff had knowledge of Broderson’s representations that no advantage would be taken on account of defaulted payments is shown- by Broderson’s testimony where she says, with reference to such assurances, that “plaintiff made no objection to it when I told her ”; a rather indirect statement with reference to such communications, yet it is susceptible of no construction 'other than that she (Broderson) told plaintiff of such assurances and that she acquiesced therein. We think there is, therefore, sufficient in the record to warrant the trial court in finding that Broderson was -a general agent of plaintiff, not only in the sale, but in the matter of collection and arrangement with reference to time of payment; -and having knowledge of the representations and assurances of her agent, making no objection thereto, receiving payments long after due, made pursuant thereto and upon the faith of such promises, plaintiff is bound by the action of Broderson in making such agreement and is not in a position to say that defendant is guilty of a grossly willful breach of duty.

The question remains as to the right of the court to relieve defendant from the forfeiture occasioned by a breach of the strict terms of the contract. Section 3275 of the Civil Code provides: “Whenever, by the terms of an obligation, a party thereto incurs a forfeiture, or a loss in the nature of a forfeiture, by reason of his failure to comply with its provisions, he may be relieved therefrom, upon making full compensation to the other party, except in case of -a grossly negligent, willful, or fraudulent breach of duty.” The assurances and representations of Broderson, of which plaintiff had knowledge, could only have the effect to lull defendant into a sense of security and induce the belief that payments made after strict default would be received as though made in time. Plaintiff relies upon the doctrine of Glock v. Howard etc. Co., 123 Cal. 15 , [ 69 Am. St. Rep. 17 , 55 Pac. 713 , 43 L. R.

right to claim a demand and forfeiture. We do not regard such cases as undertaking to construe the section of the code above quoted, nor to determine rights thereunder. Gloch v. Howard is a learned and exhaustive discussion and determination of the rights of the parties who stand upon and whose rights are dependent alone upon the terms of a written contract. Here the rights are dependent upon the contract and modifications thereof and the effect which should be given the acts of plaintiff as to waiver of terms and conditions expressed, as well as matters involving .an estoppel to claim under the strict letter of the agreement. We are of opinion that this ease clearly comes within the class contemplated by the section above referred to, and that under such section the court possessed the right from the facts found to relieve from the forfeiture. When, however, defendant was so relieved, the plaintiff still held the legal title subject to the contract and agreement of purchase. This the court determined. The action being one to determine adverse claims to real property, the respective parties were entitled to have their rights, claims and interests finally determined. The findings of fact and conclusions of law, which constitute the judgment, when considered in connection with the admissions of the pleadings, may be said to comply with section 738 of the Code of Civil Procedure, and therefore sufficient in form to preserve the rights of all parties. The entry of such judgment, however, which is a requisite to its effective character, contains the recital “that plaintiff take nothing by the action.” While such entry is a ministerial act upon the part of the clerk, it, nevertheless, must be performed before an appeal will lie, and it may not be improper to say that upon' it as entered the appeal rests. This entry of judgment should be modified by striking therefrom that part which recites “that plaintiff take nothing.” Such recital is not consistent with the judgment as pronounced.

. It is therefore ordered that the entry of judgment be modified by striking therefrom the words “that the plaintiff take nothing against the defendants or either of them by this action”; and as so modified, the judgment and order are affirmed, without costs.

James, J., and Shaw, J., concurred.