42 Wash. 642 | Wash. | 1906
— This ease was before this court on a former appeal. Conner v. Clapp, 37 Wash. 299, 79 Pac. 929. In addition to the statement of the case contained in the opinion then filed, we deem it sufficient to say that the plaintiff, by his amended complaint, seeks the specific performance of the bond for a deed there referred to. It is admitted by the pleadings, established by the proofs, and was found by the court on the former trial, that the bond for a deed was executed and delivered; that the plaintiff is in possession of the propierty; that he paid $2,000 of the purchase price on and prior to the delivery of the bond; and that he has made permanent and lasting improvements on the land of the value of $3,500, in addition to the payment of considerable sums as taxes, assessments, and for insurance'. After the case was remanded, the pleadings were amended and the cas© ivas submitted to the court on the testimony taken at the former trial. The court stated that it could consistently reach no other conclusion than that announced on the former trial, and dismissed the action. Prom the judgment of dismissal, this appeal is prosecuted.
We will now briefly consider the various objections urged by the respondents against the specific performance of the contract. It is first contended that the bond was a mere option, and that specific performance will not be decreed. Conceding, for the purpose of this case, that the bond was a mere option, the conclusion contended for by the respondents does not necessarily follow.
“The giver of the option has often sought, and sometimes successfully, to resist performance by urging that, as the party holding the option was not compellable to exercise it affirmatively, it would be inequitable to require performance by the other. In a majority of the more recent cases the courts have recognized the plea only to overrule and disallow
From what has been said, it sufficiently appears that the bond in suit was supported by an adequate consideration, and this brings the case within the rule just stated. Lawrence v. Pederson, 34 Wash. 1, 74 Pac. 1011, cited by the respondents, is not in point. In that case it was held that a mining broker did not comply with his contract to procure a purchaser by simply procuring a person who took an option on the property. The right of the holder of the option to enforce specific performance was not there involved or considered. This objection rests substantially on the same basis as the next, viz., that specific performance will not be decreed because the-aprpellant did not sign the bond and was not, bound thereby, and because specific performance could not be decreed against him. This question was fully considered by this court in the recent case of Western Timber Co. v. Kalama River Lumber Co., ante p. 620, 85 Pac. 338, and was decided adversely to' the respondents-.
The next contention is that the bond was surrendered and cancelled by the voluntary act of the parties. At the time of the conveyance of the property to respondents, it was subject to a mortgage in the sum of $3,500, which was after-wards reduced to $2,500. In the latter part of December, 1901, and the early part of January, 1902, the respondents were negotiating for a loan on the property.in the sum of $2,500 to take up this mortgage. The mortgagee insisted that the new mortgage should have priority over the bond for a deed, and that the appellant should join in the mortgage or surrender his bond. With the view of effecting this object, the appellant and the respondent J. M. Clapp went together
Aside from the alleged surrender, it is not claimed that the respondents took any steps to forfeit the bond by suit, tender of a deed, or otherwise. Stein v. Waddell, 31 Wash. 634, 80 Pac. 184. As stated by the respondents in their brief: “The record in this case shows some loose and unbusinesslike transactions between the parties,” and in view of such conduct and the payment of a considerable portion of the purchase price, and the making of large expenditures upon the property, we think that equity and good conscience demand that specific performance should be decreed. We were of this opinion on the former appeal, but inasmuch as the respondents might desire to offer further testimony on the issue of
The respondents complain that the property has increased in' value, and that the appellant is only seeking to take advantage of such increase. Undoubtedly this circumstance is a source of much litigation; but we might well ask, are not the respondents prompted by the same motive in their defense ? ITad the value of this property decreased below the amount due on the bond for a deed, would the respondents be now resisting specific performance?
Finally it is contended that the tender was insufficient. It is claimed that the bond called for $6,500 and interest, whereas the appellant tendered only $5,500 and interest. It is clearly shown by the piroof that the amount to' be paid was in fact $5,500. The respondents contend that this proof was incompetent, and that it went in over their objection. However this may be, the objection could not reach the testimony of the respondents themselves, which clearly and unequivocally shows that the consideration was in fact $5,500. On consideration of the entire record, wa are satisfied that the appellant was entitled to the relief demanded.
At the time of the former trial, there was a mortgage on the property, but this mortgage has since matured and, if not already paid, the court below can make provision for its payment. As to the form of the deed, the appellant is only entitled to a deed of special warranty against the acts of the respondents and those claiming under them.
The judgment is reversed and the case remanded, with directions to the court below to> ascertain the amount due the respondents under their bond, to which sum will be added any amounts the respondents may have plaid by way of taxes, assessments, or for insurance on the property in controversy. Upon the payment of such sums, the court will enter a decree of specific performance. If the court finds that the appellant has made a good and sufficient tender of the amount due, and
Mount, O. L, Fullebton, Hadley, Dunbab, Root, and Cbow, JJ., concur.