Petition for rehearing denied February 13, 1934 ON PETITION FOR REHEARING (29 P.2d 531) In the brief of counsel for the defendant-appellant there were three assignments of error, to-wit:
(1) The court erred in allowing the plaintiffs, over the objection of the defendant, to introduce in evidence the defendant's ledger cards and in excluding certain matter written on the backs thereof.
(2) The court erred in refusing to give certain instructions requested by defendant.
(3) The court erred in giving certain instructions. These assignments were all considered in the original opinion and decided adversely to appellant.
In the brief supporting the petition for rehearing there are two additional assignments, viz:
(1) "The Court erred in failing to hold that the plaintiff could not recover for the reason that there was no evidence that plaintiff was able or willing to make the payments due on the contract, or ever offered to do so, as shown by the undisputed testimony in the case."
(2) "The court erred in holding that the acceptance of a lesser payment than due, or at a different time than specified in the contract, would eliminate the time essence clause from the contract and require a notice to reinstate such clause."
Since the last two contentions are presented here for the first time, we may well consider the same to have been waived. However, since it is urged that the law as declared on original hearing is of vital interest to vendors who sell under conditional sales contracts, we shall again consider the question of waiver of the *Page 54 time essence clause and the right of vendors to declare a forfeiture.
There is no desire to penalize a vendor who is lenient and pursues a liberal credit policy. Neither do courts look with favor upon forfeitures. In the instant case, principal and interest amounting to $19,342.42 was paid on a purchase price of $23,959.99. $4,200 was paid upon the execution of the contract. The balance of the purchase price was to be paid in monthly installments of $400 each. Sixty-seven payments were made over a course of years, none of which, in amount or in time of payment, were in keeping with the terms of the contract. In view of this course of dealing, it is quite reasonable to assume that the vendee was lulled into the belief that the time essence clause was waived and that his interest in the contract would not be forfeited without notice of an intention so to do. Having waived the right of forfeiture by reason of past delinquent payments, it does not follow that such right of forfeiture may not be exercised upon default in future payments, but, before the vendor can reinstate or restore the forfeiture clause once waived, it is incumbent upon him to give reasonable and definite notice of such intention. There is no evidence in the record of any such notice. The rule thus declared works no hardship on the vendor and it is just to the vendee. It is needless to cite additional authorities. Those referred to in the original opinion are deemed sufficient.
No exceptions were taken to the instructions of the court relative to the alleged waiver of the time essence clause. Indeed, counsel for appellant recognized the rule of law declared in the original opinion by requesting the court to give the following instruction:
"If you find from the evidence that the Meier Frank Company, prior to the sale of the furniture to *Page 55 Winters and Steele, gave the plaintiffs notice that unless the plaintiffs paid the delinquent installments due under said contract, the furniture would be repossessed, then your verdict must be for the defendant."
No good purpose would be served by reiterating our views concerning the admissibility of the matter contained on the backs of the ledger cards, which was excluded by the trial court.
The petition for rehearing is denied.