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TRAYLOR v. LOS ANGELES MOUNTAIN PARK CO. et al.
In his petition for a rehearing, respondent argues that the effect of our opinion is to declare that no acts or conduct of defendants prior to April 15, 1931, could create or be considered as creating a waiver or estoppel or thereby to extend the operation of Exhibit C beyond that date. We do not believe that our opinion is susceptible of such an interpretation, but to put the matter beyond dispute we add that we were not considering what could have been the result but what was found to be the result of defendants' acts and conduct. The evidence would have supported findings that the plaintiff was in no position to rely on an estoppel in any particular respecting the life of Exhibit C. We need not, therefore, in such a situation, if we ever should, enlarge upon the trial court's finding. What the trial court found was that the defendants and all the parties treated the contract (Exhibit C) as a valid and subsisting legal obligation and the defendants so represented it to be. By virtue of the written extension, obviously effective as to all those interested, the contract was valid and subsisting up until April 15, 1931. Speaking of it or acting with reference to it as a binding contract during this period, of itself, may not be said to constitute a waiver of the provision for termination, nor is it conduct which would estop one from thereafter denying that he had waived the provision beyond the existing extension. There was no evidence which justified the finding that during the period after April 15, the parties treated the contract as a valid or a subsisting legal obligation with the effect that they thereby waived the termination provision or were estopped to deny that it was waived beyond April 15.
The petition for rehearing is denied.
PER CURIAM.
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Docket No: Civ. 10223.
Decided: April 07, 1937
Court: District Court of Appeal, Second District, Division 1, California.
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