Miller v. Modern Motor Co.

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…

I concur in all that is said in the foregoing opinion and in the judgment therein ordered, but wish to state that in my opinion the provisions 'of section 3275 of the Civil Code are particularly applicable to this case, and would necessitate an affirmance of the judgment of the trial court, irrespective of other reasons advanced for affirmance. The section of the Civil Code referred to provides, so far as applicable here, 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.” The facts of this case show that the remainder of the section has no present application.

It is true that the prayer of the amended complaint does not specifically ask for relief under section 3275 of the Civil Code, but it does contain a demand “for such other and further relief as to the court may seem proper.” By section 580 of the Code of Civil Procedure the trial court is empowered to grant to the plaintiff any relief consistent with the case made by the complaint and embraced within the issues…