110 Wash. 288 | Wash. | 1920
Peterson and Auld were jointly engaged in a general merchandise business, at Granger, Washington. Besides the stock of merchandise, which occupied leased buildings, they were the owners of certain real estate situated in the same city. L. H. Nichols was the owner of approximately seven hundred and forty acres of agricultural land, and personal property thereon, located in Boundary county, Idaho. In Sep
On October 19th a bill of sale for-the stock of merchandise and deeds to the lots in Granger were executed by Peterson and Auld and their respective wives, and, together with a deed of all of the Idaho land and a bill of sale of the personal property thereon which had previously been executed by Nichols and wife, were placed in escrow with the Union Bank of Granger. After the execution of these instruments, Peterson again visited the land in Idaho, and upon his return a dispute arose with Nichols as to a dis
Defendant’s answer to plaintiffs’ complaint consisted of a general denial, and by way of affirmative defense and counterclaim, he set up the above detailed facts and prayed for specific performance of the agreement and for an accounting. Plaintiffs replied, setting up the statute of frauds, and upon the issues thus formed, the case was tried to the court without a jury. The court entered a decree ordering a specific performance of the contract, and an exchange of deeds and bills of sale and possession of the properties of the respective parties. From this decree, plaintiffs have appealed.
Thé first question to be considered is, Is this case controlled by § 5290, Rem. Code, relating to contracts for the sale of goods, or by § 8745, Rem. Code, relating to conveyances of real estate? Respondent contends that the conveyance of respondent’s land was to be the consideration for appellants’ store, and that §5290, Rem. Code, applies. The contract was one concerning both real and personal property and the conveyance of real estate was involved. The contract was an entire and indivisible one. The fact that the conveyance of real estate was merely a consideration for the
“If the contract is void as to real estate, the plaintiff cannot enforce it as to personalty either, for being void in part it is void as a whole. ”
See, also, Edwall v. Jesseph, 75 Wash. 391, 134 Pac. 1041.
The next question which arises is, Was there such a part performance of the contract as to take it out of the statute? The proposition of law is conceded that specific performance of a contract which by statute is required to be in writing and has not been reduced to writing, is decreed where a party to the contract has materially changed his situation by a part performance on the faith of an oral agreement. Borrow v. Borrow, 34 Wash. 684, 76 Pac. 305; Jomsland v. Wallace, 39 Wash. 487, 81 Pac. 1094; Kennedy v. Anderson, 49 Wash. 14, 94 Pac. 661. It is also conceded sound law that such part performance must be such that the parties cannot be restored to their relative positions. 26 Am. & Eng. Ency. of Law (2d ed.), p. 52; Johnson v. Upper, 38 Wash. 693, 80 Pac. 801.
Respondent contends his situation was materially changed by his part performance of the contract. He entered into possession, contracted for additional in
The numerous cases cited by respondent have no relation to the case before us. With one exception, they refer to contracts under § 5290, Rem. Code. In the case of Matzger v. Arcade Building & Realty Co., 80 Wash. 401, 141 Pac. 900, L. R. A. 1915A 288, where an unacknowledged lease of realty was involved, there was such a changed position by the lessee as to take the case out of the statute.
We are of the opirnon that respondent has not made sufficient showing to take the situation out of the statute, and that the trial court erred in entering a decree in his favor. The case should be remanded to. the trial court for a determination of the balance of the funds, after satisfaction of accounts for merchandise purchased for the business and for insurance premiums on the stock in respondent Nichols’ control arising out of the mercantile business, and the entry of a decree awarding such balance to appellants, and ordering the Union Bank of Granger to deliver such portion of the money in the account in its bank to appellants. Moneys
Reversed and remanded with instructions.
Mitchell, Mackintosh, Main, and Parker, JJ., concur.