55 Wash. 189 | Wash. | 1909
Action by Peter Sandberg against Ira D. Light and Sarah L. Light, his wife, to enforce the specific performance of a contract to convey real estate. From a judgment of dismissal, the plaintiff has appealed.
The appellant predicates his assignments of error on findings) made and refused. The evidence shows that on April 29, 1903, the respondents executed and delivered a written lease on certain lots in Steilacoom, Pierce county, Washington, to the Tacoma Wood Distilling Company, a corporation, for the term of three years, with the privilege of two additional years, at the annual rental of seventy-fiye dollars, payable in advance on the 1st day of May in each year; that the lease contained the following option:
“It is further stipulated and agreed by and between the parties hereto that the Tacoma Wood Distilling Company, a corporation, may at its option purchase the above described premises, and the said lessors agree to sell the above described premises to the lessee if it desired to buy, upon the following terms and conditions; at the termination of the first year of said lease, at its option, the Tacoma Wood Distilling Company may purchase the said property for the sum of one thousand dollars ($1,000) ; at the termination of two years (2) the said lessee, the Tacoma Wood Distilling Company, may purchase the said premises for one thousand two hundred and fifty dollars ($1,250) ; at the termination of three years (3) the said lessee, the Tacoma Wood Distilling Company, may purchase the said property for the sum of one thousand five hundred dollars ($1,500) ; at the termination of five years after the date hereof, the said Tacoma Wood Distilling Company may purchase said premises for the sum of two thousand dollars ($2,000).”
The appellant claims to have succeeded by mesne conveyances to the rights of the lessee, including the option to pur
“That the defendants Peter Sandberg and Max Webber claim to own some interest in said lease [referring to the lease in controversy] by assignment or otherwise . . . ”;
that on May 26, 1905, Peter Sandberg, the appellant herein, served, in cause No. 24,031, his answer which contained the following denial:
“Answering paragraph 3 of said complaint defendants deny that defendants Sandberg and Webber claim to own some interest in said lease . . . ”;
that Ira D. Light claims he accepted and considered said answer as an intention on the part of Sandberg to abandon the lease, and leased premises, and that he took no further steps to obtain an injunction; that between April 21 and
The appellant contends that the tenders of $150 and $1,500, which the court found to have been made on May 5, 1906, were in fact made on April 26, 1906; but the finding made is sustained by the evidence. This being true, the tenders mentioned were made after the three-years’ lease had terminated, and no evidence was produced to show that the lease was ever renewed or extended for the additional two years, or that appellant demanded its extension when he made his last tender of rent. On the contrary he demanded a deed.
Appellant has at great length discussed the law of tender, contending that his tender of the purchase money was sufficient and timely; that it was unnecessary, the respondents having refused to convey, and that respondents, who stated no specific objections to the amount of the tender, or the time when it was made, are now in no position to question its sufficiency. We consider it unnecessary to discuss the law of tender, having concluded that the lease was abandoned by the appellant; that it was mutually terminated by act of the parties; that the appellant, by the denial of his answer, in
The controlling questions before us are questions of fact. It will serve no good purpose to enter upon a detailed discussion of the evidence, which we hold is sufficient to support the final judgment. When the lots were originally leased they were vacant. The lessee corporation forthwith installed the manufacturing plant, and soon became insolvent. Appellant was its president and also a heavy stockholder. He acquired the lease and improvements at the receiver’s sale, and thereafter paid the second year’s rent, which was accepted by respondents. Near the commencement of the third year he was about to remove the buildings, when respondents instituted an action to enjoin him. It was after he made his answer therein, disclaiming any interest in the lease, that he tendered the rent for the third year ending May 1, 1906. The respondents, relying upon his answer, not only refused to accept the rent, but also refrained from further prosecuting their action for an injunction, and permitted the appellant to remove the buildings without further molestation. Appellant took no further action until April 21, 1906, when he again tendered the third year’s rent, then almost one year in default. He evidently made this tender to induce some recognition of the lease by respondents, so that he might renew it and exercise his option to buy.
The undisputed facts clearly indicate an abandonment of the lease by appellant and its surrender by both parties, which surrender, although not formally executed, was valid in law. There is nothing to show that appellant ever claimed the privilege of the two-year’s extension contemplated by the original lease. On the contrary, after the original three years’ lease, and his option thereunder — if not forfeited—
“The agreement involved in this action being a contract for an option, the appellant had no rights thereunder after the expiration of the two years, unless he had, within that time, elected to take the property, had tendered the purchase money, and had demanded a deed, which it is not contended he did. The authorities generally hold that time is material in a contract for an option, and that it is not necessary to expressly stipulate that it shall be of its essence.”
The judgment is affirmed.
Rudkin, C. J., Mount, Parker, and Dunbar, JJ., concur.