74 Wash. 645 | Wash. | 1913
— The plaintiff filed a bill in equity seeking twofold relief, (a) to obtain a decree directing the cancellation
The court found that the Parfits, about the 1st day of September, 1909, being the owners of lots 6 to 12, inclusive, block 10, of Sweeney’s addition to the town of Port Orchard, entered into a parol contract with the respondent whereby it was agreed that they would sell the property to him for a consideration of $350, to be paid by the respondent in carpenter work to be furnished by the vendors; that, in pursuance of the contract, the respondent performed carpenter work for them of the value of $83, paid them $5 in money, and has stood ready to complete his contract. The court further found that the respondent in the fall of 1909, in reliance upon the contract, took actual possession of the property, erected permanent improvements thereon of the value of $700; that he has continued in the possession of the premises; that, on the 13th day of November, 1911, the Parfits conveyed the premises to their codefendants and that they took the deed with full knowledge of the respondent’s rights. It further found that the balance of the purchase price was $262, and that, in view of the fact that the Parfits had no work for the respondent, he should pay the balance in money. The decree ordered the cancellation of the deed from the Parfits to their codefendants, and directed specific performance of the contract upon the payment of the remainder of the purchase price in money.
The appellants make four principal contentions: (1) that the contract is within the statute of frauds; (2) that the respondent abandoned the contract; (3) that specific performance will not be decreed until there has been a complete performance by the party invoking the relief; and (4) that the Millers were innocent purchasers. These contentions will be considered in the order stated.
We have uniformly held that such possession and improvements constitute a sufficient part performance to take the transaction out of the operation of the statute of frauds. Mudgett v. Clay, 5 Wash. 103, 31 Pac. 424; Peck v. Stanfield, 12 Wash. 101, 40 Pac. 635; Borrow v. Borrow, 34 Wash. 684, 76 Pac. 305.
The second contention, that the respondent abandoned the contract, is equally wanting in merit. The vendors offered him an abatement of $20 on the purchase price if he would pay the balance in cash, and while he was endeavoring to raise the money, they conveyed the property to the Millers. They now maintain that he was unable to raise the money, and that because he returned an abstract of title which they had furnished him, he elected to abandon the transaction. He testified that he had no such intention, and we think all the circumstances of the case corroborate that view. The evidence shows, and the court found, that the respondent at all times held himself ready to perform his contract, i. e., to do the
The vendors could not put the respondent in default until they had offered to perform. The payment of the purchase price and the delivery of the deed were to be concurrent acts. Mudgett v. Clay, supra. The vendors made no tender of performance.
Were the Millers innocent purchasers? We think not. The respondent had the actual possession of the property. This imparted notice of the extent of his rights to all the world. Kuhl v. Lightle, 29 Wash. 137, 69 Pac. 630. Moreover, the respondent had applied to Mr. Miller for a loan of money in order that he might take advantage of an offer of the vendors to abate $20 of the purchase price, if he would pay in cash. Miller knew the purpose for which the loan was desired. He testified that the respondent said to him that he would lose the property if he did not succeed in borrowing the money. This the respondent denies. Mr. Miller when on the witness stand was asked:
“Q. You knew he [the respondent] had made improvements and had been living there? A. Yes, that is perfectly correct.”
Under these facts, it seems futile to contend that he was an innocent purchaser.
The judgment is affirmed.
Parker, Mount, and Chadwick, JJ., concur.