29 Wash. 86 | Wash. | 1902
The opinion of the court! was delivered hy
On October 30, 1888, appellant, hy written contract, agreed to convey to respondents an undivided
“Whereas, a certain suit is now pending in the second judicial district of said Territory of Washington, wherein one Lillian Horton Gower is plaintiff and the said George Lewis Gower defendant;
“How, therefore, for the purpose of utilizing said property during the pendency of said suit it is hereby understood and agreed by and between the parties hereto as follows:
“First. That one undivided half of said property is held by the parties of the first part [respondents here] in trust of and for the benefit of said party of the second part [appellant here].
“Third. That said parties of the first part will, as soon hereafter as may be conveniently done, and within fifty days from the date hereof, cause said property to- be surveyed and subdivided into lots of the size of 25x100 feet each, or as nearly conforming to that size as possible, and cause a proper plat thereof to be made and filed with the proper authorities in such manner as to constitute said property an addition to the city of Tacoma; and that they will also within said fifty days offer for sale and sell, if possible, the said lots, executing their warranty deeds therefor, at a fair market price therefor, but not for a less sum than $300 for each of said lots.
“Fourth. That from the proceeds of such sales shall be first paid the expense of such survey and plat, and all other reasonable and necessary expenses of such sales, and thereafter shall be paid to said party of' the second part or to his order, the sum of $2,500 each year, for the space of two> years ensuing the date hereof, or proportionately*89 until the final determination of said above mentioned suit, if such shall be finally determined before the expiration of said space of two yearn
“Fifth. That upon the final determination of said above mentioned suit, said parties of the first part will, upon demand, re-convey to said party of the second part an undivided one-half of all said property then remaining unsold, and will render account to him of the moneys received from the sale of such portions thereof as have been sold, and of the amounts then remaining due and unpaid upon any contract for the sale thereof; and will pay over to him in cash, after deducting the expenses of platting and sales, as aforesaid, one-half of the moneys so received, and oner-half of the money so due upon such contracts as the same shall be from time to time received; and will also pay toi him in cash the additional sum of $13,000 as specified in the above described contract of sale, and in the second paragraph hereof, after first deducting therefrom the amount previously paid him under the provisions of the next preceding paragraph hereof.”
Under this agreement the lands were immediately platted into lots and blocks as an addition to the city of Tacoma, and the lots were offered for sale. Some sixty-four thereof were sold and statements of expenses rendered and agreed to'. During the succeeding two years respondents paid to' appellant $5,000 as agreed. Respondents at this time held the legal title to the whole of the property described, and were indebted to appellant under the contract in the sum of $8,000. The lots were worth, at a “fair market value,” $300 per lot. The suit of Lillian Norton Gower, a sister-in-law of appellant, was still pending against him, in which suit. Mrs. Gower claimed an interest in the property. At this time Mrs. Gower had agreed to settle the suit, and, in order to clear up the title, respondents agreed to advance to her for appellant the sum of $25,000; and thereupon the contract of Sep
“And it is hereby further covenanted, agreed and understood by and between the parties hereto- that for the purpose of such reimbursement that portion and that portion only of all cash receipts aidsing’ from, the sale of lots in said Griggs & Hewitt’s Addition to which said party of the first part would otherwise be entitled under said agreement’ of January 20, 1889, a. copy of which is hereto annexed, shall be applied until such reimbursement is accomplished and that the said agreement of January 20, 1889, a copy of which is hereto annexed as aforesaid, be and be deemed to be changed and modified accordingly. Provided, that the said party of the first part may at any time hereafter pay to said parties of the second part such, sum of money as, is necessary to accomplish such reimbursement as aforesaid, and shall then be entitled to receive the settlement and conveyances mentioned and described in said original agreement, dated January 20, 1889, a copy of which is hereto annexed and made a part of this agreement. Provided, however, upon the complettion of such reimbursement as aforesaid, all lots in said Griggs & Heiwitt’s Addition, remaining unsold, shall be divided into two equal portions by lot, and the parties of the second part shall convey to the party of the first part one of such equal portions instead of an undivided half of all unsold lots, as provided for in said agreement of January 20, 1889.”
Respondents thereupon paid the $25,000 as agreed. But few, if any, of the lots were sold after this time, because the market for real estate became inactive, and the
It is first argued by appellant that under the contract the right of respondents to reimbursement for money advanced to' Mrs. Gower is limited to the proceeds of sales of lots at $300 each. To determine the correctness of this contention, it is necessary to examine and construp the contracts in the light of the surroundings of the parties at the time of their several agreements. In the contract of January 20, 1889, it was provided that the property should be platted, and, if possible, sold within fifty days. It was evidently contemplated that the lots would meet a ready market and he sold, and that the suit of Gower v. Gower, which then seemed to stand in the way of a final settlement, would be finally determined at or before the expiration of two years, ■ and thereúpon, upon demand of appellant, the property should he divided, and their af
It is next urged that the court erred in entering a personal judgmetit: against appellant. There was no agreement by which appellant bound himself to reimburse respondents for money advanced. It is true, there was a provision that appellant “may at any time hereafter pay to said parties of the second part such sum of money as is necessary to accomplish such reimbursement as aforesaid, and shall then be entitled to receive the settlement and
The judgment of the lower court will be modified to’ the extent of striking out the provision for a deficiency judgment against appellant. In all other respects the judgment is affirmed, with costs against respondents.
Reavis, O. J., and Anders, Fullerton, Hadley, White and Dunbar, JJ., concur.