45 Wash. 132 | Wash. | 1906
This cause was determined upon demurrer to the complaint in the court below. The complaint alleges, that on the 15th day of April, 1903, the defendant was the owner of the south half of lot 6 in block 10, in the town of Downs, in Lincoln county, Washington; that on said date the defendant sold the same to the plaintiff for $600, which has been paid; that at the time of the sale and as an inducement to plaintiff to purchase the property, and as a consideration therefor, the defendant executed and delivered to plaintiff a written agreement; as follows;
“Downs, Lincoln Co., Wash., Api. 15, 1903.
“This agreement entered into between John O’Connor and Henry E. Ayars in which John O’Connor agrees to pay Henry E. Ayars the sum of six hundred dollars at the end of three years, with interest at the rate of fifteen per cent, on the delivery of a warranty deed from Henry E. Ayars to John O’Connor of the south half of lot six, block ten in the Town of Downs, Wash. Henry E. Ayars to have the privilege of paying for the removing of all improvements and buildings from said lot. John O’Connou.”
that at the end of three years mentioned in said agreement, to wit, on the 13th day of April, 1906, the plaintiff, together with his wife, duly made a good and sufficient warranty deed to said property conveying it to defendant; that on the léth day of April, 1906, the plaintiff personally tendered the deed to the defendant and demanded the payment of $690, and that defendant refused to accept the deed, or to pay the money. An offer to keep good the tender of the deed is made in the complaint, and judgment for $690 is demanded. A general demurrer was interposed to the complaint, and was sustained. The plaintiff refused to plead further, and judgment of dismissal was entered, and plaintiff has appealed.
On its merits, it is respondent’s view that the tender as alleged was premature. It will be remembered that the time was “at the end of three years” from April 15, 1903. It is manifest that the time expired at midnight on the night of April 14, 1906. The complaint alleges that the tender of the deed and demand for payment occurred on April 14, but at what time in the day does not appear. Under respondent’s theory appellant should have made the tender at midnight at the last moment of the day of April 14. Such would be an unreasonably technical requirement. The law does not
Respondent also argues that the tender of the deed was a conditional one, it being conditioned upon the payment of the money. The complaint alleges an absolute tender of the deed and a refusal to accept it. A separate paragraph merely alleges that at the time and place of the tender demand was made for the payment of $690. The averment as to tender is sufficient.
Respondent further argues that the contract was usurious, because it provides for interest at the rate of fifteen per cent. He claims that this means fifteen per cent per annum, but the contract does not say so in terms. It provides, among other things, for payment of $600 at the end of three years, with interest at the rate of fifteen per cent. Respondent was the maker of that agreement, and if it was his intention to make a usurious contract that could not liave been enforced, he should have seen that it clearly provided for interest at fifteen per cent per annum. In that event appellant would have been clearly advised of its usurious terms. As it is, appellant simply construed it to mean that fifteen per cent of the $600 was to be added to that sum at the end of three years, making the full demand $690. He therefore demanded that sum and no more. We think, considering all the peculiarities of the contract, that it admits of that interpretation, and that, under the circumstances, respondent should not be heard to say that it does not. In any event, under Laws 1899, page 128, § 7, the alleged usurious feature of the contract would not have rendered it void so that it would constitute no cause of action as against demurrer. It would have simply affected the amount of recovery.
We think the complaint states a cause of action, and that it was error to sustain the demurrer.
Mount, C. J., Fullerton, Crow, and Root, JJ., concur.