7 Wash. 431 | Wash. | 1893
Lead Opinion
The opinion of the court was delivered by
The complaint set out the contract, under the terms of which prompt payment of the installments of purchase money was made material; and alleged the making and acceptance of several small payments amounting in gross to the first, second and third installments. As to the fourth and last installment, it was alleged that plaintiff was ready and willing to make payment on the day set, July 21, 1890, but that defendant could not be found on that day. Tender and demand for a deed were made on several subsequent days up to August 28th. As ground for rescission, it was alleged that defendant was at no time the owner of the real estate contracted for up to the date of the last tender, but that one biims at all times during the life of the contract had the legal title thereto, wherefore defendant could not convey. A demand for a return of the money paid was also alleged to have been made September 1st, coupled with an offer to return the contract. Prayer for the rescission of the contract and judgment for the money paid.
Under this pleading we think it was error for the court
The second error of the court was in compelling the trial of the case as an action at law. Appellant maintains that this is an action for money had and received, and that he was entitled to recover it in assumpsit; but we think not. Time was not made of the essence of the contract so far as the delivery of the deed was concerned, either by the terms of the instrument or by the showing of other facts, and there was no direct allegation of fraud in the making of the contract which would authorize the grantee to rescind of his own motion. In such a case it must appear that, upon the whole case, the grantee had an equitable right to rescind the contract, and that the grantor should not, in good conscience, be permitted to retain the money paid. Warvelle on Vendors, pp. 942-3. Moreover the complaint asked the interference of the court to declare a rescission, and this was an invocation of its equity powers.
Under the issues made by the pleadings plaintiff had nothing to prove. A tender of the last payment was not necessary if, in fact, defendant had not title. If he had no title, and no equitable excuse for not having it, his contract would have been a fraud on the plaintiff, who could have rescinded it at any time, but if he had an equitable excuse, plaintiff’s tender could not put him in the wrong. Thus, the whole case rested upon the equitable defenses of the answer, for the denials of payments alleged in the complaint were sham and false; sham because they related only to the payments on particular dates, and false because they had in fact been made. The sole question was whether plaintiff was entitled to have the contract rescinded after the showing proposed to be made by defendant’s answer, and that was a question for the court.
Treating the general verdict of the jury as though it
Secondly, in our judgment the clear preponderance of the evidence was, that if there was not an agreement for an extension, there was, at least, a waiver of strict performance on both sides. There was direct and positive testimony, by three witnesses, of the agreement to extend, with no contradiction except by the plaintiff himself. There was' testimony, also, that when plaintiff was making his tender and demand in August, he was charged with having agreed to the extension, and that he did not deny having so agreed. Although the times of payment were made of the essence of the contract, plaintiff did not make either the second or the third payment on time, or in one sum, but defaulted, and made only partial payments subsequently. Plaintiff admitted asking for extensions, and to having made a request of that character in April; but he claimed to confine them to all but the last payment. Yet if they were so confined, according to his understanding, he must have seen that defendant did not so consider it or he would not have referred to the matter of getting the deed from Nims. There was nothing about the trans
Appellant asks this court, if the judgment be reversed, to decree a specific performance of the contract by directing a judgment against the respondent for the last installment of the purchase money, with interest, in exchange for the deed, which was brought into court and tendered with the answer. But the difficulty with that proposition is, that there was no cross bill by way of counterclaim, as good pleading would require there should be if affirmative relief is demanded. Had there been a demurrable counterclaim even, in an equity case, we should regard the facts
Hoyt and Anders, JJ., concur.
Dissenting Opinion
(dissenting).I dissent. I do not think the matters stricken out had any office to perform in this kind of a case, unless it would be to distract the mind of the jury from the true issues to be determined in the case. So far as the probabilities of the truthfulness of the witnesses is concerned, I do not care to discuss them. All questions of fact were submitted by the law to the judgment of another tribunal. They have exercised their judgment and it is binding upon me. The judgment should be affirmed.
Scott, J., concurs.