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TABLE OF CONTENTS.
I. Vendor and Purchaser: Time of the Essence: Waiver of the Effect of
II.Executions: Construction of the Statutory Requirement of Notice
in Salos of Real Property.
III.Specific Performanco: Contracts Specifically Enforceable: Contracts
for the Co-operative System of Distribution of Agricultural Products
under Section 653 pp,California Civil Code.
IV. Intoxicating Liquors: Forfeiture Under the Wright Act of a vehicle
Usod in the Unlawful Transportation of Liquor: Rights of a Conditional
V. Automobiles: Motor Vehicle Act: Provisions of the Act as Essential to
the Transfer of Legal Title.
VI.Vendor and Purchaser: Time of the Essenco: What Conduct on the Part of
a Vendor Amounts to a Waivor of a Provision Making Time of the Essence
11 CALIFORNIA LAW REVIEW
VENDOR AND PURCHASER: TIME OF THE ESSENCE: WAIVER OF THE EFFECT OF CONDUCT-In California the principle that where, in an installment contract for the sale of land, time is made of the essence, and the vendee defaults, the vendor is entitled to retain the payments made to him under the contract, is definitely established by the case of Glock v. Howard and Wilson Colony Company, which is followed in subsequent decisions. Our courts choose rather to enforce such stipulations strictly, protecting business interests by uniformly enforcing certain rules concerning contracts and by refusing to make over the contract for the parties,than to adhere to the view that time cannot be made strictly of the essence in equity. The California view is supported by at least one authoritative text writer, and it has even been held in this state that the provision making time expressly of the essence is unnecessary and wholly immaterial in reaching this result.6
But where we find a strict enforcement of forfeiture the courts are prone to apply the doctrines of "waiver” loosely,s and so the rule in the above case was later modified by Boone v. Templeman." The rule there laid down was “that where the entire course of business between the parties has amounted to a waiver of the condition, a forfeiture cannot be declared without notice and demand; and further, that allowing the total purchase price to become due makes the tender of a deed a condition precedent to declaring the vendee in default."10
This view is taken in many later cases11 and so, in view
1 (1898) 123 Cal. 1, 55 Pac. 713, 69 Am. St. Rep. 17, 43 L. R. A. 199.
2 Odd Fellows' Savings Bank v. Brander (1899) 124 Cal. 255, 56 Pac. 1109; Oursler v. Thatcher (1908) 152 Cal. 739, 93 Pac. 1007; Skookum Oil Co. v. Thomas (1912) 162 Cal. 539, 123 Pac. 363; Smith v. Post (1914) 167 Cal. 69, 138 Pac. 705; Cross v. Mayo (1914) 167 Cal. 594, 140 Pac. 283; Schwerin Estate Realty Co. v. Slye (1916) 173 Cal. 170, 159 Pac. 420; Heden v. Point Reyes Land Co. (1921) 185 Cal. 121, 196 Pac. 44; Tomboy Gold and Copper Co. v. Marks (1921) 185 Cal. 336, 197 Pac. 94; Fresno Irrig. Farms Co. v. Canupis (1918) 39 Cal. App. 184, 178 Pac. 300, 37 Cal. App. Dec. 22; 8 California Law Review, 62.
3 Brown v. Ulrick (1896) 48 Neb. 409, 67 N. W. 168; 29 Harvard Law Review, 791.
4 Vernon v. Stephens (1722) 2 Peere Wms. 66, 1 Ames Equity Cases, 338.
5 Pomeroy's Equity Jurisprudence 864.
6 Nance v. Avenall (1915) 147 Pac. 583, 584, 26 Cal. App. Dec. 551; 2 Williston on Contracts, p. 1513.
7 "The expression 'waiving a forfeiture' is incorrect. Election is the applicable doctrine; and the act is unilateral.” Ewart, Waiver in Insurance Cases, 18 Harvard Law Review, 366.
8 “Strict doctrines as to forfeitures inevitably produce loose doctrines as to 'waiver' where, before time for performance, vendor signifies his intention not to insist on timely or exact perfomance and purchaser, in reliance thereon, acts accordingly; the principle of Equitable Estoppel is quite sufficient to preclude insistence upon the condition to purchaser's injury.” 33 Harvard Law Review, 952.
9 (1910) 158 Cal. 290, 110 Pac. 947, 139 Am. St. Rep. 126. 10 8 California Law Review, 62.
11 Stevinson v. Joy (1912) 164 Cal. 279, 285, 128 Pac. 751; 1 California Law Review, 300; Myers v. Williams (1916) 173 Cal. 301, 159 Pac. 982; Butte Creek Consol. D. Co. v. Olney (1916) 173 Cal. 697, 708, 161 Pac. 260; Her