128 Wash. 646 | Wash. | 1924
Lead Opinion
Defendants’ demurrer to the complaint was sustained and judgment was entered dismissing the action.
The complaint alleged that, on October 28, 1910, the plaintiff and one James Campbell entered into a written contract, which is as follows:
“October 28/10
“Burke & Farrar.
“Permission is hereby given Burke & Farrar to make repairs to the brick building in Kirkland, corner of Piccadilly and Market streets, which repairs are to be paid for in rents received from tenants who may occupy the building. When all the expenditures have been paid to Burke & Farrar to reimburse them for repairs and money paid out and interest at 7%, then arrangements may be made for future contract for the lease of the property. All bills for repairs, and all moneys received for rent will be reported to the bearer, James Campbell. This property is known as Lots 9 and 10, Block 178, Kirkland town site, King county, Wash.
“James Campbell.”
It was further alleged that Mr. Campbell died in September, 1921, leaving a will, and that, about a year prior to his death, the instrument quoted was filed for record in the office of the auditor of King county; that, relying upon the written agreement, the plaintiff, shortly after its execution, made certain repairs on the building in question at an expense to it of $721.28, and that no part of this sum has been repaid except $67.82, and that there is still due and owing $653.46 of
The complaint further alleges that the executors of the estate of Mr. Campell have published notice to creditors, and that the time for filing claims thereunder has expired and that plaintiff did not file any claim with the executors; that the executors, trustees and heirs of the estate have leased the premises to Kirkland Masonic Lodge No. 150, for a term of five years from June 16, 1922, at the rental of $76 for the first year and $20 per month thereafter, and that the defendants-have already received the first year’s rental, to wit: $76; that the defendants refuse to recognize that plaintiff has any rights whatsoever in the building or the rents to be derived therefrom, and that they are about to sell and dispose of the property, and that, if such be doné, the plaintiff will be irreparably damaged and its rights under its contract made worthless. It is further alleged that the above mentioned $76 was paid to the defendants after the time provided in the notices for filing claims of creditors against the estate. The prayer is that the defendants be required to pay to the plaintiff the rental thus collected, to wit, $76, and that they be enjoined from selling or disposing of the property until the plaintiff shall have received the amount still due it from rents or otherwise.
It is claimed that the demurrer was properly sustained because it was necessary that appellant should
Nor was the appellant’s demand in the nature of a contingent claim, for under no circumstances and at no time could it have any claim against the estate as such. It was to get its money from a designated fund and in no other way. We have read the several decisions of this court cited by the parties hereto, but we do not consider them as materially affecting the question under discussion. Doubtless, if Mr. Campbell had collected rents which he had failed or refused to pay to the appellant, then a personal liability against him and his estate would have accrued, simply because he would have become indebted to the appellant for having retained moneys belonging to it. But such is not the case here. Under the allegations of the complaint, Mr. Campbell had not collected any rentals during his lifetime, and the executors had not collected any rents until after the time for filing claims had expired.
The respondents’ next contention is that the six-year period of limitations has run against appellant’s demand. Section 155, Bern. Comp. Stat. [P. C. § 8160], reads: “Actions can only be commenced within the
It is also contended that the contract does not obligate the appellant to expend any money on the building. This is true, but the complaint alleges that, accepting the terms of the proposition made by Mr. Campbell, appellant did, shortly after the execution of the instrument, make repairs in the sum alleged. Under all of the authorities, where one is not obliged to perform but does perform, the contract will stand as though he had, in the first place, obligated himself, and the performance becomes a consideration which makes the contract enforcible.
More difficult questions arise on the claim of the respondents that appellant’s demand is stale; that lapse of time has barred its enforcement, and that the contract is unenforcible because of its indefinite terms. The argument is that the agreement does not provide any time within which appellant may collect the rents; that twelve years have already expired and the property has yielded but an insignificant sum; that it might take ten or twenty years, or even more, for the rents to discharge the claim; that it could not have been the intention of the parties when the contract was made that appellant should have an indefinite time within which to.liquidate its claim, during all of which the owner would be deprived of the right to dispose of the
We will discuss the last propositions first.
We are of the belief that the written instrument authorizes appellant, as agent for Mr. Campbell, to lease the premises and collect the rents until its claim is paid. The general tenor of the whole instrument supports this view, and particularly that portion which provides that “all moneys received for rent will be reported to the bearer, James Campbell.” If it was not the intention that appellant should do the renting and collecting or, at least, have the right so to do, then the portion of the contract quoted would be entirely useless. Since, under the contract, the appellant had the right and privilege of renting the property, there would devolve upon it the duty of using a reasonable effort in that regard, and a failure to use such effort would ultimately defeat its rights and put it in position to be justly accused of neglecting or sleeping on those rights. But the complaint sufficiently alleges that it did perform its duty in this respect, for it says that “the plaintiff has complied with each and all of the obligations under the terms of the contract.” While this is not a very specific allegation, it is amply sufficient as against demurrer. If the case be tried upon its merits, it will be proper to receive evidence touching the question whether appellant has in the past used a reasonable effort to find tenants for the property and to collect the rents. If it has not so done, then its claim would be stale and judgment should be against it.
The complaint states sufficient to entitle the appellant to recover from the respondents the $76 rentals paid after Mr. Campbell’s death and after the time had expired for filing claims and to entitle it to have a decree of the court enjoining the sale of the property
Dissenting Opinion
(dissenting) — It seems to me that the complaint does not state a cause of action. The contract is so indefinite that it is unenforcible.
Moreover, the decision fastens what is, in effect, a permanent lien for an indefinite number of years against and ties up the title to the property indefinitely —a thing the parties to the contract did not do or contemplate and there is no law justifying it.
I am obliged to dissent.