“The courts have held that the motives of the vendee in rescinding may not be inquired into when he has a legal reason for rescinding and relies thereon”
How later courts described this case
- “The courts have held that the motives of the vendee in rescinding may not be inquired into when he has a legal reason for rescinding and relies thereon”
Written by the judges who cited it.
The opinion
THE COURT
The petition for a hearing in this court is denied.
The opinion of the district court, in answer to the appellants’ proposition that the defendant was not entitled to *674 rescind the contract while he was himself in default by nonpayment of installments due on the purchase price, says that “the vendors accepted overdue payments from time to time under the contracts, and thtus waived the provision that time was of the essence of the contracts.” (Italics ours.) The language we have italicized is not a correct statement of the law without further qualification.
[7] Acceptance of overdue installments of the price, on an executory contract for the sale of land, waives any right to declare a forfeiture on account of the previous failures to pay when due. But such acceptance alone does not change the terms of the contract as to forfeiture for future failures, nor eliminate the provision that time is of the essence of the contract. There may be conduct and acquiescence by the vendor sufficient to justify the inference by a court as a matter of fact that the vendor has waived the conditions of a contract regarding a forfeiture, which he afterward claims the right to enforce, and when in such a case the waiver has continued until after all installments áre due, the condition cannot be revived except by notice to the vendee. (Boone v. Templeman, 158 Cal. 296 , [ 139 Am. St. Rep. 126 , 110 Pac. 947 ] ; Stevinson v. Joy, 164 Cal. 285 , [ 128 Pac. 751 ]; Hoyt v. Bentel, 164 Cal. 684 , [ 130 Pac. 432 ]; American etc. Co. v. Butler, 165 Cal. 519 , [Ann. Cas. 1916C, 44, 133 Pac. 280 ] ; Myers v. Williams, 173 Cal. 304 , [ 159 Pac. 982 ].) But none of these cases holds that such waiver is absolute, or that the provision cannot be revived and a forfeiture produced by a notice requiring performance within reasonable time.
[8] The' true answer to the proposition of appellants, above stated, is that the rule it invokes applies only to cases where a.rescission is sought or claimed by one party to an executory contract on the ground of a breach of the contract by the other party. All the cases to that effect are of that character. (State v. McCauley, 15 Cal. 458 ; Fairchild etc. Co. v. Southern etc. Co., 158 Cal. 273 , [ 110 Pac. 951 ]; Duncan v. Jeter, 5 Ala. 604 , [ 39 Am. Dec. 342 ]; Hatton v. Johnson, 83 Pa. St. 222; Myers v. Gross, 59 Ill. 436 ; Seymour v. Bennett, 14 Mass. 266 .) We know of no ease which holds that such rule applies to a case where the vendee in default on payments due on the contract seeks to avoid and rescind it for fraud of the vendor in procuring its execution, *675 or for mistake inducing its execution. Payment by the vendee, after discovery of the fraud or mistake, might tend to show a waiver thereof, and thus defeat an attempted rescission, but a refusal to pay would be entirely consistent with the right of the vendee to rescind for such cause.
Shaw, J., Angellotti, C. J., Lennon, J., Lawlor, J., Wilbur, J., Sloane, J., and Olney, J., concurred.