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District Court of Appeal, Fourth District, California.


Civ. 1522.

Decided: February 19, 1935

James E. Fenton, of Los Angeles, for appellants. Albert E. Sheets, of Sacramento, for respondent.

The defendant and appellant in July of 1931 entered into an agreement with plaintiff and respondent to purchase a house and lot under the provisions of the Veterans' Farm and Home Purchase Act. Chapter 519, Stats. 1921 (page 815), as amended by chapter 405, Stats. 1923 (page 911), chapters 822, 825, Stats. 1927 (pages 1649, 1656), and chapter 1014, Stats. 1931 (page 2027). The total purchase price under the contract was $5,255, payable $262.75 cash and the balance in monthly installments of $32.96, beginning September 1, 1931. The defendant paid the first installment on October 31, 1931. No further payments were made or tendered until February 13, 1932, at which time defendant offered a payment of $30. This money was subsequently returned to him. In the meantime and on January 19, 1932, the plaintiff board passed a resolution and mailed a copy thereof to defendant whereby it set the date of cancellation or forfeiture for February 19, 1932, unless all defaulted installments were paid on or before that date. On February 19th a resolution declaring the forfeiture of the contract for default in payments was duly passed and the defendant notified by mail as provided by the contract. Regular statements showing the amount of past-due and current installments were mailed to defendant on the first of each month. An action to quiet title (Code Civ. Proc. § 738) and to determine adverse claims (Code Civ. Proc. § 749) was thereafter brought against the purchaser and his wife. The answer pleaded the contract and a waiver of strict compliance as to the terms of payment. The trial court gave judgment for plaintiff. While a motion for new trial was pending, amended findings were filed. The motion for new trial was denied and defendant appeals, relying upon four assignments of error: First, that the trial court erred in sustaining an objection to the proffered evidence that defendant had talked with the alleged head of plaintiff's collection department in Los Angeles and that he had orally waived the time of payment for the delinquent installments; second, that the trial court was in error in amending its findings pending the motion for new trial; third, that a general finding that title to the property was in the plaintiff and not in the defendant was not a sufficient finding upon the defense of waiver; and, fourth, that the trial court should have granted an interlocutory decree rather than an absolute one.

The first assignment of error must be dismissed for the reason that there was no proof of the agency or authority of the alleged head of the collection department of the Los Angeles office of the board. Harris v. Miller, 196 Cal. 8, 235 P. 981; Flickinger v. Wrenn Investment Co., 172 Cal. 132, 155 P. 627. Furthermore, if it be admitted that the party with whom the alleged conversation was had was the head of the collection department, defendant was dealing with a public agent and was charged with notice of his actual authority (Walker v. Department of Public Works, 108 Cal. App. 508, 291 P. 907) and of the fact that such power and authority to postpone payments in individual cases is by the express terms of the veterans' act vested in the board (see California Highway Commission v. Riley, 192 Cal. 97, 218 P. 579). Furthermore, defendant could not have been misled by the action of the collection department for the reason that each month he received regular statements and demands showing the amount of defaulted and current payments due.

A trial court has ample power to change or add to its findings and to modify its judgment in ruling upon a motion for new trial (Code Civ. Proc. § 662; Moore v. Levy, 128 Cal. App. 687, 18 P.(2d) 362) in order to give true expression to the decision of court (Heron v. Bray, 122 Cal. App. 79, 9 P. (2d) 513).

The general finding that the title to the property was in plaintiff and not in defendant was sufficient for the reason that no adequate evidence was presented or offered to support the issue of waiver, and further because the record would require a finding on this issue adverse to appellant. Hawkins v. Hawkins, 104 Cal. App. 608, 286 P. 747; Maloof v. Maloof, 175 Cal. 571, 166 P. 330.

Interlocutory decrees in actions of this kind, whereby a defaulting party is given a definite time within which to make defaulted payments, are within the discretion of the trial court. Los Angeles Auto Tractor Co. v. Superior Court, 94 Cal. App. 433, 271 P. 363. Rulings within the court's discretion will not be interfered with in the absence of a clear showing of abuse. Waybright v. Anderson, 200 Cal. 374, 253 P. 148. At the time of the trial, defendant had been in possession of the property involved for one year without any payment save the insignificant initial deposit and one monthly installment. The proposed interlocutory decree provided for a further moratorium of five months within which to cure defaults. The request was unreasonable and in view of all circumstances of the case the trial court was amply justified in denying it and in entering an absolute decree.

The attempted appeal from the order denying the motion for new trial is dismissed and the judgment is affirmed.

ALLYN, Justice pro tem.

We concur: BARNARD, P. J.; JENNINGS, J.

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