GIVENS, Justice (on rehearing).
December 16, 1947, respondent Williamson and her husband, by written agreement, sold to appellants Leatus J. Smith and his wife, Mabel C. Smith, a portion of Lot 5 of Block 44 of the City of Soda Springs, Idaho, for $3,650, payable $100 down and $83.38 on the 16th day of each subsequent month beginning with June, 1948, with interest at six percent and vendees to pay the taxes. Time was of the essence thereof, and upon the default of purchasers any amount paid was to be retained by the vendors as rental for said premises.
Payments were made more or less promptly between the 14th and 20th of the respective months; the 1949 November payment was not made until November 29 and the September 1950 payment, September 30. The 1949 taxes were not paid by the vendees and after some eleven months were paid by the vendors.
Appellants lived in the house during 1948 and 1949 and until May 12, 1950, when the property was rented by the vendees to various tenants, and Mr. Matthews of Soda Springs, a real estate dealer, looked after the property for the Smiths and was to apply the rent on the contract payments. Some of the rents not being paid, the October
No response being made by the vendees, further notice was given them December 16, 1950, as follows:
Nothing was done by the Smiths and no tender made or request for further extension of time.
March 6, 1951, respondent sued to quiet title. Appearance was made on behalf of the Smiths by their receiver in bankruptcy and the defense carried on by the receiver as intervenor. During the course of the trial, the receiver by stipulation —
Also included in the offer apparently was $100 for attorney's fees for respondent's attorney. The offer was further modified in particulars not material herein.
Upon the final submission, the Court made findings, conclusion, and entered a decree in favor of respondent, quieting her title.
The appeal attacks the decree on two main points: that the ten-days notice of November 20 was too short and a further or extended period of grace should have been allowed by the trial court; and second, that the improvements placed upon the property by the vendees and the increased value of the property made it inequitable and abhorrent to declare a forfeiture.
This Court has thus declared the rule:
Though the first notice of forfeiture specified ten days, no action was taken within ten days, and the second notice of December 16 was 26 days after the first was
Mrs. Smith was the only witness on behalf of defendants with regard to this feature and she testified their inability to make payments was because of sickness and the garnishment of her husband's wages and the insufficiency of the rents at the last to make the payments. No effort of any kind was made by the Smiths or the intervenor-receiver to pay until after the suit was filed March 16, 1951, and then a conditional offer was made at the trial of the case October 24, 1951, eleven months after the first notice was given.
Conceding (but not deciding) vendor's allowance of the non-payment of taxes to go by for almost a year and the non-payment of the October rent to pass until the 20th of November necessitated notice of delinquency, and giving a reasonable time within which to pay and thus avoid a forfeiture, the actual time between the notice given and the final declaration of forfeiture thereunder was from November 20 to December 16. Appellants contend there should have been a thirty-days notice. The actual time was within four days thereof. Since no effort or any attempt was made to comply with the contract and no contention is made that it was the shortness of time which prevented compliance, we cannot say the trial court abused his discretion in not finding and concluding the time specified was unreasonably short. Atchison Savings Bank v. Richards, 131 Kan. 81, 289 P. 975; Grider v. Turnbow, 162 Or. 622, 94 P.2d 285.
At the time respondent repossessed the property, it is evidently conceded there was a balance due of $1,201.64 on the principal; thus, appellants had paid $2,448.36.
The Smiths made improvements on the property, evidently prior to October 1950, without specific evidence as to the cost or direct value thereof.
Mr. Matthews, a witness for appellants, testified the market value of the property December 16, 1950, was $7,500. Respondent testified she did not believe it was worth over $4,500. The court fixed the market value at $4,500. The difference between the contract price of $3,650 and market value as found, might indicate the value of the improvements was $850.
After the Smiths ceased living in the house, May 1950, rent of $495 was received to September 1950, or an average of $99 per month. Respondent, after respossession January 1951, to October 1951, received $763.60 in rent, or an average of $76.36 per month. There was no direct showing what the rental value was during the time the Smiths lived in the house from December 1947 to May 1950.
Respondent paid $646.17 in protecting and recovering the property.
The written contract provided time was of the essence thereof and that upon appellants' failure to perform, all payments made should be retained by respondent as rent.
Appellants contend that only $1,201.64 being due on the balance of the purchase price, as against a value of $4,500 as found by the court, or the value of $7,500 as asserted by appellants, and payment of $2,448.36 on the principal, make it inequitable to declare a forfeiture and they rely particularly on the following Utah cases: Perkins v. Spencer, Utah, 243 P.2d 446, where forfeiture in a contract for the sale of realty for $10,500 for delinquence of $2,500 was held unreasonable; Croft v. Jensen, 86 Utah. 13, 40 P.2d 198, a forfeiture for default of $200 on a total obligation of $6,500 was held unreasonable; and Malmberg v. Baugh, 62 Utah. 331, 218 P. 975, forfeiture of a little over half was held unreasonable.
The situation herein is closely analogous to that considered in Donaldson v. Josephson, 71 Idaho 207, at pages 210-211, 228 P.2d 941, 943, though that case involved the relationship of landlord and tenant. However, the principle appears to be the same and there we said:
The above case thus considered the amount paid for use and occupation, i. e., rental, was not excessive as liquidated damages.
The contract herein, specifying the payments were to be retained as rent, justified the court in balancing the payments as against the rental value, McMahon v. Cooper, 70 Idaho 139, at page 147, 212 P.2d 657, as well as the amount forfeited against the value of the property, improvements made by appellants and amounts expended by respondent in repossessing the property, etc. Perkins v. Spencer, Utah, 243 P.2d 446, supra, cited by appellants, thus states and elucidates what may be considered:
The facts and circumstances disclosed in this record do not constrain us to hold the trial court erred in declaring a forfeiture, or that the amount so forfeited is so disproportionate or unreasonable as to demand a reversal. The decree, therefore, is affirmed.
Costs to respondent.
PORTER, C. J., and TAYLOR, THOMAS and KEETON, JJ., concur.