Barkis

I dissent. Although, on its face, this ease may seem in some of its aspects to be a hard one for affirmance, I think that we should either follow the law on the record as it actually exists, or frankly declare that the law is changed. Glock v. Howard (1898), 123 Cal. 1 [ 55 P. 713 , 69 Am.St.Rep. 17 , 43 L.R.A. 199 ], and Henck v. Lake Hemet Water Co. (1937), 9 Cal.2d 136 [ 69 P.2d 849 ], contain statements which are inconsistent with the majority opinion; I think that they should be followed or squarely overruled insofar as they are inconsistent.

As to the finding of gross negligence and wilful breach of contract the majority, in the face of substantial evidence, substitute their conclusion of fact for that of the trial court; the majority hold that as a matter of law the use by defendants, in making payments on the time-essence contract on two occasions within three months, of checks drawn on an account without sufficient funds to cover such checks, does not support the specific finding of the trial court that such conduct was either wilful or grossly negligent. If using bad checks two times in three months does not support a finding of wilfulness or gross negligence would…

Defendants have appealed from a judgment quieting plaintiff’s title to a parcel of real property. In 1941, plaintiff and defendants executed a contract whereby defendants agreed to purchase plaintiff’s house and lot in Oakland. Seven hundred dollars was paid down and the balance of $5,450 with 6 per cent interest was to be paid at the rate of $42.50 per month. The contract provided that payments were to be made on the fifteenth day of each month and that “If Default should be made in the payment of any of the said sums of principal, interest or installments at maturity thereof, all moneys theretofore paid in the premises by said parties of the second part shall, at the option of said party of the first part, become absolutely forfeited to and be retained by said party of the first part, as and for liquidated and agreed damages for breach of this agreement; and this agreement shall then become and be absolutely void and of no effect. ... It Being Expressly Agreed that time is the essence of this contract. ...” Defendants went into possession and made 57 monthly payments up to and including the payment due May 15, 1946. They also made permanent improvements on the property of the…