TUTTLE, J.,
pro tem.
This is an action brought to recover possession of an automobile, or, in the event delivery cannot be had, to recover judgment for the value thereof. Judgment went for plaintiff, to the effect that upon payment by plaintiff of the entire balance due on the purchase price of the automobile, delivery be made to plaintiff. If delivery could not be had, then plaintiff should have judgment in the sum of $1612.63. This appeal is prosecuted from the judgment.
It is first contended that the complaint does not state sufficient facts to constitute a cause of action, in that
waiver is not properly pleaded. In this respect the complaint alleges: “That after the execution of said contract, said defendants waived that part of the contract wherein time is made the essence thereof, and agreed to, and did accept from this plaintiff payments on account of the purchase price of said automobile, long after the same were due and payable.” We believe, upon general demurrer, that these allegations sufficiently comply with the rule that where a waiver is relied upon, the facts constituting the waiver must be set forth.
The only other point urged for reversal is the insufficiency of the evidence to justify the finding of the court that defendants had waived that provision of the contract of purchase which provided that time should be of the essence thereof.
On December 24, 1926, plaintiff purchased from Modern Motor Company the automobile in question, executing a conditional sales contract. A “down payment” of $1811.88 was made by plaintiff, and the deferred balance was $2,456.04, payable in twelve equal monthly installments of $204.67 each. The first installment was due January 24, 1927. It was paid February 28, 1927. The second installment was due February 24th and it was paid March 25th. The third installment was paid March 25th, upon the same date that the second installment was paid. The fourth installment was due April 24th and was paid June 13, 1927. During the time that these payments were being made plaintiff testified that the collector of defendant stated upon one occasion when the delinquency of plaintiff was discussed: “You don’t need to worry about that. We have got your statement.” Upon another occasion he said: “Don’t worry about that; that will be all right. Do the best you can and we will give you time on that.”
On July 13th General Motor Acceptance Corporation (designated in the contract to collect payments), wrote a letter to plaintiff demanding immediate remittance of the sum then due on the contract, to wit, $409.34. No notice of any kind was sent by defendant Modern Motors Company. On July 14th two men, representing defendant Motor Company, took the car from plaintiff. One of these men stated that plaintiff could repossess the car in seventy-two hours,
and that as soon as plaintiff had the money he could go down to Modern Motor Company and get the car any time.
The court found that on July 15, 1927, plaintiff tendered to defendant a sum in excess of $1637.37, being the entire balance due on account of said contract and that defendant refused to accept said sum.
Do the foregoing facts justify the trial court in finding that defendant waived the provision o'f the contract that time was of the essence thereof ? Or was the defendant justified in seizing the car without notice and thus effecting a forfeiture of some $2,700, which plaintiff had paid upon the purchase price ? Forfeitures are never favored by courts of law or equity. (12 Cal. Jur. 633.) The law does not like forfeitures, and evidence tending to show the waiver of a forfeiture will be looked upon with kindly eyes.
(Knarston
v.
Manhattan Ins. Co.,
124 Cal. 74 [56 Pac. 773].) It follows, from the fact that forfeitures are abhorred, that-a waiver of forfeiture is favored. (12 Cal Jur. 642.) Where a waiver prevents a forfeiture, the law ordinarily permits a liberal construction to be placed upon the acts of the parties waiving, with a view of bringing about a waiver of such a forfeiture.
(Loftis
v.
Pacific Mutual Life Ins. Co.,
38 Utah, 532 [114 Pac. 134, 139].) A condition involving a forfeiture must be strictly interpreted against the party for whose benefit it was made. (Sec. 1442, Civ. Code.)
It is generally held that if the vendor acquiesces in the payment of many of the earlier installments, after the time fixed, and thus lulls the purchaser into the belief that prompt payment will not be insisted upon, he should, if he desires to insist upon a strict performance by the purchaser as to future installments, give him notice to that effect. (27 R. C. L., p. 453, citing
Boone
v.
Templeman,
158 Cal. 290 [139 Am. St. Rep. 126, 110 Pac. 947], and numerous other authorities.) Equity will refuse to enforce an express provision making time of the essence of the contract, where to do so would be unconscionable, so under some circumstances it will refuse to enforce a forfeiture. (13 Cal. Jur., p. 688.)
The rule in California is stated in the case of
Boone
v.
Templeman,
158 Cal. 290 [139 Am. St. Rep. 126, 110 Pac. 947] to be as follows: “Where time is made of the essence
of the contract for the payment of rent or other payment of money, and this covenant has been waived by the acceptance of rent or other moneys after they are due, and with knowledge of the facts, such conduct will be regarded as creating such a temporary suspension of the right of forfeiture as could only be restored by giving a definite and specific notice of intention to enforce it.” The same rule is laid down in the cases of
Stevinson
v.
Joy,
164 Cal. 279 [128 Pac. 751];
Hoppin
v.
Munsey,
185 Cal. 678 [198 Pac. 398];
Leballister
v.
Morris,
59 Cal. App. 699 [211 Pac. 851]
; Weatherbee
v.
Sinn,
73 Cal. App. 98 [238 Pac. 134];
Burmester
v.
Horn,
35 Cal. App. 549 [170 Pac. 674];
Pearson
v.
Brown,
27 Cal. App. 125 [148 Pac. 956].
The rule in New York is found in the ease of
Barnett
v.
Sussman,
116 App. Div. 859 [102 N. Y. Supp. 287], where real property was sold under a contract providing for monthly payments at regular stated periods, and that on default in any payment, the vendor might, thirty days thereafter, elect without notice that all payments become forfeited as liquidated damages. It was held that the acceptance by the vendors, from the beginning, of payments not made according to the contract, but irregularly as to time and amount, the purchaser being at all times in arrears, was a waiver of the forfeiture clause, which could not be revived, except upon notice to the purchasers that if they did not ■ pay the balance due within reasonable time specified, the forfeiture would be exercised.
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TUTTLE, J.,
pro tem.
This is an action brought to recover possession of an automobile, or, in the event delivery cannot be had, to recover judgment for the value thereof. Judgment went for plaintiff, to the effect that upon payment by plaintiff of the entire balance due on the purchase price of the automobile, delivery be made to plaintiff. If delivery could not be had, then plaintiff should have judgment in the sum of $1612.63. This appeal is prosecuted from the judgment.
It is first contended that the complaint does not state sufficient facts to constitute a cause of action, in that
waiver is not properly pleaded. In this respect the complaint alleges: “That after the execution of said contract, said defendants waived that part of the contract wherein time is made the essence thereof, and agreed to, and did accept from this plaintiff payments on account of the purchase price of said automobile, long after the same were due and payable.” We believe, upon general demurrer, that these allegations sufficiently comply with the rule that where a waiver is relied upon, the facts constituting the waiver must be set forth.
The only other point urged for reversal is the insufficiency of the evidence to justify the finding of the court that defendants had waived that provision of the contract of purchase which provided that time should be of the essence thereof.
On December 24, 1926, plaintiff purchased from Modern Motor Company the automobile in question, executing a conditional sales contract. A “down payment” of $1811.88 was made by plaintiff, and the deferred balance was $2,456.04, payable in twelve equal monthly installments of $204.67 each. The first installment was due January 24, 1927. It was paid February 28, 1927. The second installment was due February 24th and it was paid March 25th. The third installment was paid March 25th, upon the same date that the second installment was paid. The fourth installment was due April 24th and was paid June 13, 1927. During the time that these payments were being made plaintiff testified that the collector of defendant stated upon one occasion when the delinquency of plaintiff was discussed: “You don’t need to worry about that. We have got your statement.” Upon another occasion he said: “Don’t worry about that; that will be all right. Do the best you can and we will give you time on that.”
On July 13th General Motor Acceptance Corporation (designated in the contract to collect payments), wrote a letter to plaintiff demanding immediate remittance of the sum then due on the contract, to wit, $409.34. No notice of any kind was sent by defendant Modern Motors Company. On July 14th two men, representing defendant Motor Company, took the car from plaintiff. One of these men stated that plaintiff could repossess the car in seventy-two hours,
and that as soon as plaintiff had the money he could go down to Modern Motor Company and get the car any time.
The court found that on July 15, 1927, plaintiff tendered to defendant a sum in excess of $1637.37, being the entire balance due on account of said contract and that defendant refused to accept said sum.
Do the foregoing facts justify the trial court in finding that defendant waived the provision o'f the contract that time was of the essence thereof ? Or was the defendant justified in seizing the car without notice and thus effecting a forfeiture of some $2,700, which plaintiff had paid upon the purchase price ? Forfeitures are never favored by courts of law or equity. (12 Cal. Jur. 633.) The law does not like forfeitures, and evidence tending to show the waiver of a forfeiture will be looked upon with kindly eyes.
(Knarston
v.
Manhattan Ins. Co.,
124 Cal. 74 [56 Pac. 773].) It follows, from the fact that forfeitures are abhorred, that-a waiver of forfeiture is favored. (12 Cal Jur. 642.) Where a waiver prevents a forfeiture, the law ordinarily permits a liberal construction to be placed upon the acts of the parties waiving, with a view of bringing about a waiver of such a forfeiture.
(Loftis
v.
Pacific Mutual Life Ins. Co.,
38 Utah, 532 [114 Pac. 134, 139].) A condition involving a forfeiture must be strictly interpreted against the party for whose benefit it was made. (Sec. 1442, Civ. Code.)
It is generally held that if the vendor acquiesces in the payment of many of the earlier installments, after the time fixed, and thus lulls the purchaser into the belief that prompt payment will not be insisted upon, he should, if he desires to insist upon a strict performance by the purchaser as to future installments, give him notice to that effect. (27 R. C. L., p. 453, citing
Boone
v.
Templeman,
158 Cal. 290 [139 Am. St. Rep. 126, 110 Pac. 947], and numerous other authorities.) Equity will refuse to enforce an express provision making time of the essence of the contract, where to do so would be unconscionable, so under some circumstances it will refuse to enforce a forfeiture. (13 Cal. Jur., p. 688.)
The rule in California is stated in the case of
Boone
v.
Templeman,
158 Cal. 290 [139 Am. St. Rep. 126, 110 Pac. 947] to be as follows: “Where time is made of the essence
of the contract for the payment of rent or other payment of money, and this covenant has been waived by the acceptance of rent or other moneys after they are due, and with knowledge of the facts, such conduct will be regarded as creating such a temporary suspension of the right of forfeiture as could only be restored by giving a definite and specific notice of intention to enforce it.” The same rule is laid down in the cases of
Stevinson
v.
Joy,
164 Cal. 279 [128 Pac. 751];
Hoppin
v.
Munsey,
185 Cal. 678 [198 Pac. 398];
Leballister
v.
Morris,
59 Cal. App. 699 [211 Pac. 851]
; Weatherbee
v.
Sinn,
73 Cal. App. 98 [238 Pac. 134];
Burmester
v.
Horn,
35 Cal. App. 549 [170 Pac. 674];
Pearson
v.
Brown,
27 Cal. App. 125 [148 Pac. 956].
The rule in New York is found in the ease of
Barnett
v.
Sussman,
116 App. Div. 859 [102 N. Y. Supp. 287], where real property was sold under a contract providing for monthly payments at regular stated periods, and that on default in any payment, the vendor might, thirty days thereafter, elect without notice that all payments become forfeited as liquidated damages. It was held that the acceptance by the vendors, from the beginning, of payments not made according to the contract, but irregularly as to time and amount, the purchaser being at all times in arrears, was a waiver of the forfeiture clause, which could not be revived, except upon notice to the purchasers that if they did not ■ pay the balance due within reasonable time specified, the forfeiture would be exercised.
Prom the foregoing authorities it is established that the intent to waive the terms of the contract as to time being of the essence thereof, is an ultimate fact to be inferred by the trial court from the course of conduct on the part of the seller in receiving payment of successive installments after they have become delinquent; that the court, in weighing the evidence, should resolve all doubts in favor of the buyer, and adopt any reasonable and rational construction of the acts of the parties with a view of bringing about a waiver of a forfeiture, and that, in the final analysis, the court will not lend itself to the perpetration of an unjust and unconscionable act.
The cases relied upon by appellant as upholding the right of forfeiture are not opposed to the conclusions arrived at in the foregoing paragraph. In the case of
Benedict
v.
Greer-Robbins Co.,
26 Cal. App. 468 [147 Pac. 486], the utmost extent to which the court would go, was to hold that when
partial
payments were overdue, and were accepted by the seller, the right to retake the property is not affected. In that case only
one
partial overdue payment was received by the seller. In the case of
Pacific Finance & Inv. Co.
v.
Pierce,
48 Cal. App. 600 [191 Pac. 1115], the contract expressly provided that acceptance by the owner of any payment after the same is due shall not constitute a waiver of the provision that time was of the essence of the contract. The case of
Magee
v.
W. J. Motor Car Co.,
37 Cal. App. 737 [174 Pac. 687], held that the seller could retain possession of the automobile, in the absence of any reasonable prompt tender of performance by the delinquent purchaser. The’ question of waiver was not involved or discussed.
We are satisfied that in the instant case the finding of the trial court upon the question of waiver is amply supported by the evidence. Nor was any sufficient notice given which would revive the right of forfeiture. A notice was sent through the mail on the day prior to the taking of the automobile, but was insufficient in that it failed to specify that the automobile would be taken from the possession of plaintiff upon a failure to comply with the demand therein. Neither do we consider that a reasonable time was allowed for the compliance with the demand.
There is another determining factor in this case which lends support to the judgment. The court found that a tender of the total amount due upon the contract was made within seventy-two hours after the taking and that this tender was refused by appellants.
Section 3275 of the Civil Code provides as follows: “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 cases of a grossly negligent, wilful or fraudulent breach of duty.”
It must be admitted that the facts of this case do not come within the exception mentioned in the statute quoted. Plaintiff would have lost some $2,700. if the forfeiture was exacted. Upon proof of such tender being made at the trial, the court was authorized by said section to enter judgment to the effect
that plaintiff recover possession o£ the property, upon payment to defendant of the entire balance due upon the purchase price, and that is exactly what was done. This construction of the statute has been followed and adopted in the case of
McDonald
v.
Kingsbury,
16 Cal. App. 244 [116 Pac. 380]. In that case, although at the time of trial it was admitted that the vendee was several months in arrears in his monthly payment upon the purchase price of real property, the court refused to forfeit his rights under the contract, and ordered that if he would pay into court the entire balance due, judgment would be entered in his favor, relieving him of said default. The appellate court states that this section authorized the court to relieve the vendee from a forfeiture occasioned by a breach of the strict terms of the contract. In the case of
Trougton
v.
Eakle,
58 Cal. App. 161 [208 Pac. 161], this statute was referred to as authorizing the court, upon the “slightest consideration,” to relieve parties from the result of a forfeiture.
We are of the opinion that, irrespective of the question of a waiver of the provision that time is of the essence of the contract, the court was authorized to enter the form of judgment found in this record. •
The disposition made of the issues by the trial court was in keeping and consonance with well recognized and established principles of equity, and the judgment is therefore affirmed.