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of this modification, the vendor is held to have waived his right to enforce the forfeiture strictly by accepting installments after maturity. 12 And the courts have also presumed a waiver from the general conduct of a vendor when such conduct shows an intention not to rely upon the condition precedent.13

The effect of these decisions has been that, although provisions making time of the essence are enforced strictly in this state, yet the practical result has been much the same as in those jurisdictions which take the view that the real effect of such a stipulation is that it is merely evidence which may, or may not, show that time was so important that delay by the plaintiff should bar him from equitable relief.

In the case of Brown v. Chowchilla Land C0.14 the parties entered into contracts for the purchase and sale of certain real estate, which provided for monthly installments to be paid on the interest and purchase price, and expressly provided that time should be of the essence of the contract. The thing which distinguishes this case from the ordinary one is that the parties further agreed that “the waiver by the seller of any breach of any covenant or agreement herein contained on the part of the purchaser shall not be deemed or held to be a waiver of any subsequent or other breach of said covenant or agreement, nor a waiver of any other covenant or agreement herein contained.” By this clause the parties actually contracted away the effect of the waiver of any breach upon subsequent breaches, irrespective of whether notice that the vendor again wished to assert his right to enforce the forfeiture had been given or not. In the instant case the plaintiff became in arrears in his payments, but after a lapse of nearly three years he made an overdue payment which was accepted by the vendor. In the suit for specific performance, instituted after the vendor later refused to convey, the court denied relief and enforced the forfeiture, holding that where a contract for the sale of real estate includes a provision similar to the above, an acceptance of overdue payments does not constitute a waiver of the right to declare the contract forfeited for subsequent overdue payments, and that a notice of the revival of the right of forfeiture is not required.

In view of the above decision most installment contracts in the future will undoubtedly contain such a covenant, thereby assuring a strict enforcement of the provision making time of the essence. The result is that, instead of the more liberal view, we now find ourselves back to a rule of strict enforcement of forfeiture under such

mosa Beach Land and Water Co. v. Law Credit Co. (1917) 175 Cal. 493, 495, 166 Pac. 22; 8 California Law Review, 62; Karl v. Andrews (1919) 29 Cal. App. Dec. 462, 42 Cal. App. 513, 183 Pac. 838; Lemle v. Barry (1919) 181 Cal. 1, 183 Pac. 150; 181 Cal. 5, 183 Pac. 148; Newell v. E. B. & A. L. Stone Co. (1919) 181 Cal. 388, 184 Pac. 659, 9 A. L. R. 993; Hoppin v. Munsey (1921) 185 Cal. 678, 688, 198 Pac. 398; Kerr v. Reed (1921) 187 Cal. 409, 202 Pac. 142.

12 Boone v. Templeman, supra, n. 9.
13 Karl v. Andrews, supra, n. 11.
14 (Sept. 26, 1922) 39 Cal. App. Dec. 133, 210 Pac. 424.



contracts, unalleviated by the doctrines of waiver. Harsh though this rule may seem, it follows as a logical and inevitable conclusion as long as our major premise remains the view typified by Glock v. Howard and such cases. Relief from this strict doctrine lies in changing the major premise.

The question which such a situation presents is merely whether or not parties can contract that their conduct will have a different effect than that which it would naturally have had if there had been no stipulation. In relieving against forfeitures the courts have really refused to give legal effect to the intention of the parties as expressed by their agreement, and this constitutes an exception to the rule that persons of full capaciy to contract are bound by their agreements.?. This is the situation where the courts refuse to enforce the waiver by a mortgagor of his equity of redemption,16 But the mortgage case is distinguishable from an agreement to waive the effect of the parties' conduct when it might otherwise amount to a waiver of the provision making time of the essence. In the former case equity will interfere because of the duress of circumstances, for, as a California court has said, "debtors, under the force of pressing necessities, will submit to almost any exactions for loans of a trifling amount, compared with the value of the property.17 Now, the contract here, by which the parties chose to waive the effect which their conduct would normally have had under the law in California, does not seem to be a contract which is inherently harsh or unjust in its own nature, nor one which would warrant interference, on the basis of public policy, with the freedom of contract of the parties.

From the standpoint of justice to a vendee who has defaulted the result reached in this case may seem to be too harsh, but the fault lies, not in the decision of the court in the instant case, but rather in the fact that we have kept to the rule of strict forfeiture in this state, seeking to get around it by waiver, instead of adopting a more equitable rule. It is the application of such strict formulae as this that prompts commentary on the law of today such as is contained in the following lines of Mr. H. G. Wells: “Existing law seems to him. (the writer) to be based upon a confused foundation of conventions, arbitrary assumptions, and working fictions about human relationship, and to be a very impracticable and antiquated system indeed; he is persuaded that a time will come when the whole theory and practice of law will be recast in the light of a well developed science of social psychology in accordance with a scientific conception of human society as one developing organization and in definite relationship to a system of moral and intellectual education. He contemplates the law and lawyers of today with a temperamental lack of appreciation."18

11. V.C.

15 20 Michigan Law Review, 646.

16 2 Story's Equity Jurisprudence, 399; Vernon v. Bethell (1762) 2 Eden 110, 113; Pierce v. Robinson, Adm'r (1859) 13 Cal. 125, 126.

17 Pierce v. Robinson, Adm'r, supra, n. 16.
18 H. G. Wells, The Outline of History, p. 537.



information necessary to determine how much of this income is earned from business within the taxing state? The Massachusetts excise is confined to corporations which have "a usual place of business in this commonwealth”, so that the only corporations subject to it are those which have agents actively engaged in business there. Such agents, though they solicit only orders to be filled by shipment of goods from without the state, are nevertheless using a base within the state to compete with manufacturers and wholesalers within the state. A corporation thus using facilities within the state may well be subjected to the bother incident to reporting its profits from sales to customers there. The case is less clear with regard to foreign corporations which secure customers solely by advertising sent from without the state. Local merchants throughout the country are eager to find a way to subject the national mail-order houses to the tax laws of the states where the purchasers reside. One may sympathize with their feelings and still appreciate difficulties in the way of solacing them. There is the question of jurisdiction not raised by the Massachusetts statute. The difficulty of allocating the income is greatly increased when there are no agents or property within the taxing state. Very likely Massachusetts has gone to the limit by its present statute. There are obvious disadvantages in subjecting to state control of any kind a corporation which in no sense enters the state except to send in advertising matter and make deliveries of goods. Some of those disadvantages appear also when agents enter the state and establish there a base of operations in their quest for customers. Whether such disadvantages are sufficient to require the state to forego a tax which on fiscal grounds is clearly warranted is the question of substance which the Supreme Court will have to decide in reviewing the Massachusetts decision.


EXECUTIONS: CONSTRUCTION OF THE STATUTORY REQUIREMENT OF NOTICE IN SALES OF REAL PROPERTY-Until recently the law in California has required that before the sale of real property upon execution notice thereof must be given by posting a notice describing the property "in three public places of the township or city where the property is situated, and also where the property is to be sold,” for a period of twenty days before the sale. How is one,

1 Cal. Code Civ. Proc. § 692 (3) prior to Aug. 17, 1923. This section was amended May 18, 1923 to read that, as to real property, notice is to be given "by posting a similar notice particularly describing the property for twenty days, in three public places of the township or city where the property is to be sold and publishing a copy thereof once a week for the same period, in some newspaper of general circulation printed and published in the city or township in which the property is situated, ... Provided that where real property is to be sold under the provision of any deed of trust the copy of said notice shall be posted in some conspicuous place on the property to be sold, at least twenty days before date of sale." Cal. Stats. 1923,

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charged with the posting of such notices, to interpret the above language? Does the statute mean that notices must be posted in three public places of the township wherein the property is situated, and also, if the sale is to take place in another township, in three public places of the township where the property is to be sold, or does it require the posting of an additional fourth notice, in any event, at the particular place where the property is to be sold?

A solution of this problem was attempted by the District Court of Appeal in the case of Sargent v. Shumaker. The sale there was under a deed of trust which provided for the giving of notice of the time and place of sale in the manner required by law for sales of real property upon execution, and was held in the township in which the property was situated. The trustee had posted proper notices of the sale in three conspicuous places in the city for a sufficient length of time, but had omitted to post such notices at the bank where the sale was to be held. Although the court could have reached the same result, as between the parties, upon a different ground, it chose rather to make the question one of statutory construction as to the number of notices required to be posted by the statute, and declared the sale to be void for want of sufficient notice as required by law because notice was not posted at the place of sale.

The effect of this decision, if final, is the clouding of probably thousands of titles involving millions of dollars worth of property. Upon investigation, by inquiry made of the sheriffs' offices of the representative counties of the state, it is found that the uniform custom has been to post three notices in the township where the property is to be sold, and three in the township where the property is located. Where the sale is to take place in the township wherein the property is situated, only three notices have been considered necessary, but, as a matter of precaution, the court house, where such sales are customarily held, is usually selected as one of the conspicuous places. In the City and County of San Francisco where

ch. 372. It will be observed that the statute now calls for the posting of notices in only three places in any case, these places being in the township where the property is to be sold, except where the sale is under a deed of trust, in which case an additional notice must be posted upon the property.

2 (July 31, 1923) 41 Cal. App. Dec. 825. Hearing in Supreme Court granted Sept. 27, 1923.

8 The court found that the sale was conducted in such a manner, both by the failure of the trustee to call for bids in an audible tone of voice and by the haste in which he conducted the sale, that it was impossible for persons present to bid on the property. Moreover, the element of inadequacy of the purchase price is present. Though inadequacy of price alone could not be a ground for setting aside the sale, only slight additional evidence of unfairness is necessary. Odell v. Cox (1907) 151 Cal. 70, 90 Pac. 194; Winbigler v. Sherman (1917) 175 Cal. 270, 275, 165 Pac. 943. The facts in this case would bring it within this well settled principle.

• It is interesting to note that the precaution mentioned above has been of no avail under the decision in Sargent v. Shumaker, supra, n. 2. The interpretation placed upon the statute in that case requires three notices to

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