30 Wash. 147 | Wash. | 1902
The opinion of the court was delivered by
Suit by the vendors against the vendee for specific performance of contract to purchase timber land. At the trial the plaintiffs introduced evidence, documentary and oral, tending to prove the following facts: That plaintiffs were at the times mentioned husband and wife; that defendant is a domestic corporation carrying on the business of manufacturing, buying and selling and dealing in all kinds of lumber and logging, operating mills, acquiring timber, and doing all business connected therewith ; that there were four trustees who exercised the pow
“F. D. Black, President. George G. Startup, Secretary. A. H. Gould, Vice-President. C. H. Black, Treasurer.
We own and log our timber.
Wallace Lumber and Manufacturing Oo. Manufacturers of Lumber, Lath and Shingles..
Fine Grades of Cedar and Fir a Specialty.
Wallace, Wash., Sept. 17, 1900. This is to certify that I have this day sold to the Wallace Lbr. & Mfg. Co. of Wallace, Wash., my claim, namely, the S. E. % of Section 15, K. 8 East, Town. 28, and also to acknowledge the receipt of $25.00 (Twenty-five dollars) in hand paid as part payment of purchase price, namely, $3,-000.00 (Three thousand dollars), and it is understood.that balance to be paid in ten days from date, if records appear all right. Victor Anderson.”
The letter delivered to the president was in the following form:
“F. D. Black, President. George G. Startup, Secretary. A. H. Gould, Vice-President. C. PL. Black, Treasurer.
We own and log our timber.
Manufacturers of Lumber, Lath and Shingles.
Fine Grades of Cedar and Fir a Specialty.
Wallace, Wash., Sept. 25, 1900.
Mr. F. D. Black: .
Mr. Victor Anderson comes to you to settle up. We promised to let him know last Saturday but did not make your connections. Will you kindly take the matter up with him and settle as per agreement — $3,000.00, less $25.00 advance payment for which we hold receipt. Hope to see you up this way soon. Yours truly,
G. G. Startup.”
At the conclusion of plaintiff’s case a motion to dismiss was sustained, and the court entered a decree in favor of defendant.
1. Is the memorandum sufficient to establish an enforceable contract between the parties ? It is maintained by counsel for respondent that such contract for the conveyance of real property, to he valid, must comply in its form with. §§ 4517 and 4518, Bal. Code, which prescribe that all conveyances of real estate, and all contracts creating or evidencing any incumbrance thereon, shall he by deed, and that such deed shall he signed and acknowledged. It may he observed that these sections relate only to conveyances, and to contracts creating or evidencing incumbrances; they do not necessarily include agreements to convey. In Langert v. Ross, 1 Wash. 250 (24 Pac. 443), a contract in similar form, signed by the vendor, was held a valid agreement to convey real estate. Again in Vail v. Tillman, 2 Wash. 476 (27 Pac. 76), was a similar conclusion. In Baker-Boyer National Bank v. Hughson, 5 Wash. 100 (31 Pac. 432), the objection was made “that the contract for a deed for the real estate which was to he conveyed to the defendants, for the part payment was not acknowledged and was, therefore; void.” The court said:
“Under the decisions of this court this objection is without force, as we have held in several cases that a contract for the conveyance of real estate was entirely valid without any acknowledgment,” citing the two above-mentioned cases. In Edson v. Knox, 8 Wash. 642 (36 Pac. 698), it was held that a deed without acknowledgment could he maintained as a valid contract for a deed. In Kleeb v. Bard, 7 Wash. 41 (34 Pac. 138), the validity of a contract for sale of standing timber was challenged. The court there observed:
“As to the Perry tract, conceding that an executory contract to sell standing timber to he cut and removed by the purchaser is a contract for the sale of an interest in land,*152 and therefore within the statute of frauds (1 Warv., Vend., p. 175; Owens v. Lewis, 46 Ind. 488), still we are unable to see why the contract which respondent held from the Perrys did not meet this requirement. True, it was not a deed, but it is not necessary that a contract to sell land, as such, be a deed.”
It may be concluded that the repeated consideration of this court of the two sections of Ballinger, supra, confines their effect to proper requisites for evidence of legal title and incumbrances, and does not change the requirement for agreements evidencing contracts enforceable in equity under the statute of frauds. It is objected that the defendant here is the party to be charged, and that the contract was not signed by defendant, or any one on its behalf. Assuming, for the present, that authority to sign was vested in the secretary, the signature seems to fall directly within the rule stated in Tingley v. Bellingham Bay Boom Co., 5 Wash. 644 (82 Pac. 737). There the memorandum was not signed by the defendant corporation, but the instrument was in the handwriting of the agent. The memorandum was as follows:
“This agreement, entered into this 20th day of August, 1890, by and between the Bellingham Bay Boom Company, of Fairhaven, Washington, party of the first part, and J. H. Moore and others, respectively, whose names are hereto subscribed, parties of the second part, witnesseth,” etc.
And the court observed:
“It is a well established rule of law that a contract is signed within the meaning of the statute, whether the name of the party to be charged appears at the bottom, top, middle or side of the paper. Drury v. Young, 58 Md. 546; Clason v. Bailey, 14 Johns. 487; Barry v. Coombe, 1 Pet. 640; 1 Reed, St. Frauds, § 384.”
But it is contended that it must be shown that the name of defendant appears in some appropriate way to have been
2. The authority of defendant’s officers to make the agreement is challenged by defendant chiefly upon the ground that the trustees did not act as an official board, but as individuals only. It appears there were four trustees. Each had knowledge of, and three of them actively participated in, the transaction — the president, vice-president and superintendent, and the secretary. The principle stated in Carrigan v. Port Crescent Improvement Co., 6 Wash. 590 (30 Pac. 148), is applicable here, and is approved, that is, when a corporation allows certain officers to manage its business, particularly, as here, such as president, vice-president, and superintendent, it must be responsible for their acts unless it affirmatively shows they were unauthorized. Upon the facts as they now appear, the agreement evidenced by the memorandum was authorized by defendant.
3. The only remaining question is as to plaintiffs’ right to enforce the contract by specific performance. The rule seems to be well supported by authority, and founded in
“In fact, the prevailing modem authority is that, in a case of this kind the vendor can either sue at law for damages or resort to equity for specific performance.”
This right is based upon mutuality in the contract. Warvelle on Vendors thus states the principle:
“A suit in equity against the vendee to compel a specific execution of a contract of sale, while in effect an action for the purchase money, has nevertheless always been sustained as a part of the appropriate and acknowledged jurisdiction of such court, although the vendor has, in most cases, another remedy by an action at law upon the agreement.” Warvelle, Vendors, p. 779, and cases cited.
See, also, Pomeroy, Contracts (2d ed.), p. 6. The performance on the part of the defendant here required is the payment of the purchase price, which may be enforced by collection of the money from any of defendant’s property, or enforced by order of sale as upon execution.
The judgment is reversed, and the cause remanded for a - new trial consistent Avith the foregoing expressions.
Hadley, Anders, Pullerton, Write and Mount, JJ., concur.