187 P.2d 611 | Wash. | 1947
"Received of A.H. Dubke $250.00 as deposit on 2418 E. Hartson. Total price to be $4,400.00.
"Thomas Kassa."
Thereafter, respondent refused to purchase the property, and the appellants were at all times prior to the commencement of this action ready, willing, and able to complete the sale. This action was commenced to recover the two-hundred-fifty-dollar payment. Thereafter, the appellants sold the property to a third party.
[1] The applicable rule is that a vendee under an agreement for the sale and purchase of property which does not satisfy the statute of frauds, cannot recover payments made upon the purchase price if the vendor has not repudiated the contract but is ready, willing, and able to perform in accordance therewith, even though the contract is not enforcible against the vendee either at law or in equity. 49 Am. Jur. 870, § 564; 37 C.J.S. 779, § 256; 2 Restatement of the Law of Contracts 614, § 355; Johnson v. PugetMill Co.,
The trial court in this case permitted the vendee to recover the two hundred fifty dollars, because it believed that our decision in Stanek v. Peterson,
It does not seem to be, nor can it be, seriously urged that appellants sacrificed their right to retain the payment received, because they sold the property to a third person after the respondent had commenced this action.
The judgment is reversed, with direction to enter a judgment of dismissal.
MALLERY, C.J., STEINERT, JEFFERS, and HILL, JJ., concur. *488