19 Wash. 146 | Wash. | 1898
’The opinion of the court was delivered by
Respondent in August, 1893, was appointed receiver of the Washington National Bank, then in liquidation, by the comptroller of the currency of the United States. A part of the assets of the bank consisted of certain real estate known as the “Gig Harbor Mill” property. In November, 1894, appellant and others (who have since -assigned their claims to him) entered into an agreement with respondent to purchase the “Mill” property for the •sum of $10,000, of which $1,000 was to be paid in cash, $2,000 more on or before the expiration of sixty days, and
Several points are presented upon this appeal and argued by counsel, and the nature of the contract is in contention between the respective parties, respondent maintaining’ that appellant paid the $1,000 for a mere option to purchase within sixty days. The appellant contends that the receiver had no power to grant an option, that he could only sell under an order of the court. The findings of fact made by the superior court are accepted by both parties and no exceptions have been taken to them. It is evident from the facts found that the one thousand dollars did not pass to the respondent absolutely, as is ordinarily the rule in paying for an option on real property. It was a part payment of the purchase price, if the contract between the parties was consummated, and it was under the terms of the contract to be forfeited to the respondent if the $2,000, the second payment under the terms of the contract, was not made within sixty days. There was, then, some default of appellant to be noted before the forfeiture. The stipulation of appellant to pay the $2,000 within sixty days was interdependent with another stipulation of the respondent to execute a conveyance of the “Mill” property within sixty days or at the time of the payment of the $2,000, and while the superior court has found that the respondent held himself in readiness to carry out the agreement within the sixty days, that court has not found that respondent had the ability to carry out the contract with
Scott, O. J., and Dunbar, Anders and Gordon, JJ., concur.