128 Wash. 504 | Wash. | 1924
The plaintiffs, Stanley Anderson and wife, seek recovery of an installment of $2,000 and interest claimed to be due to them from the defendants, F. W. Anderson and E. E. Mayer, as a portion of the purchase price under a contract by which the plaintiffs agreed to sell, and the defendants agreed to purchase, a tract of land in Spokane county. A trial in the superior court for that county, sitting without a jury, resulted in findings and judgment awarding to the plaintiffs recovery as prayed for, from which the defendants have appealed to this court.
On January 19,1922, the plaintiffs, being the owners of the land in question, subject to a mortgage securing an indebtedness of $5,000 and interest owing to the Phoenix Mutual Life Insurance Company, entered into a written contract for the sale of the land to the defendants. The agreed purchase price was $12,091.50, to be paid by the defendants assuming the payment of the principal and interest on the mortgage debt, which was to mature November 1,1922; and $2,000 to be paid .on November 1, 1922; $2,000 on November 1, 1923; $2,000 on November 1,1924, and $1,091.50 on November 1, 1925, with interest on these installments until paid. It being contemplated that the defendants might desire to have the mortgage loan renewed upon maturity, they agreed “to assume responsibility for the renewal thereof when the same matures;” the plaintiffs, however, agreeing to aid the defendants in securing such renewal in so far as it might be necessary for the plaintiffs to execute “such papers as may be required to accomplish such result.” It was so agreed manifestly because the principal of the mortgage debt was to become due on November 1, 1922, when the record title to the land would still be in the plaintiffs. The contract further recited and provided as follows:
*506 “Parties of the first párt [plaintiffs] have this day executed a warrany deed in favor of parties of the second part [defendants], subject only to the mortgage hereinabove referred to, which deed together with a copy of this contract, shall be placed in escrow in the Security State Bank of Palouse, Wash., where the payments provided for hereunder shall be made, and conditioned that upon full compliance with the terms of this contract, said deed shall be delivered to parties of the second part.”
The deed so executed and a copy of the contract were accordingly placed in escrow with the Security State Bank of Palouse. The first installment of $2,000 and interest being unpaid, on January 13, 1923, the plaintiffs commenced this action, seeking recovery from the defendants of the amount of that installment, and also interest claimed by them to be then due upon all of the installments. At .that time the defendants were in default in the payment of the principal of the mortgage debt and a considerable portion of the interest thereon. Evidently because of this fact a renewal of the mortgage could not be obtained from, the insurance company, at least not until the interest should be paid. However, as we think the record clearly shows, the plaintiffs were ready and willing to execute any papers necessary to accomplish such renewal. All that the defendants had to do to that end was to pay the interest and induce the insurance company to accede to such renewal of the mortgage, as to which they had agreed “to assume responsibility.” The trial court found “that there was an attempted oral rescission of the contract, but same was not sufficiently acted upon. ’ ’
The principal contention here made in behalf of the defendants seems to be that there was a mutual, oral rescission of the contract. The finding of the trial court on that subject touching the question of whether
Some contention seems to be made in behalf of the defendants rested upon the theory that the plaintiffs neglected and refused to execute papers necessary to the renewal of the mortgage, and that thus the defend
The judgment is affirmed.