45 Wash. 562 | Wash. | 1907
This is an action to enforce specific performance of a contract concerning the sale of real estate.
The answer and cross-complaint of the vendors admits the execution of the contract, and that $800 was paid in July, 1905, but alleges that the plaintiff has neither paid any other sum nor performed any of the conditions in the contract set forth. It is admitted that the plaintiff took possession in July, 1905, and that she has ever since been in possession, although it is alleged that possession has often been demanded by the defendants and cross-complainants before the commencement of this action. It is alleged that in the month of November, 1905, plaintiff requested from defendants an extension of time in which to make the payment of $1,000, which by the contract was to be made on the 1st day of November; that the defendants agreed to extend the time until January 10, 1906, and notified the plaintiff that unless the payment was made on the last-named day, the contract would be cancelled on that day, and that the cross-complainants under the conditions of the said contract elected and determined to cancel the contract and forfeit the payments theretofore made on said 10th day of January, 1906, unless the plaintiff should make the $1,000 payment with interest before said date; that on said 10th day of January the plaintiff notified the defendants in writing of her full understanding of said agreement of extension, and again in writing asked a further extension, which the defendants refused to grant, and did not grant; that on the 24th day of February, 1906, the defendants notified the plaintiff in writing of their election to cancel the contract. It is also alleged that a further notice in writing was given on March 24, 1906, and demand for possession made which was refused, and that the plaintiff wrongfully and unlawfully retained possession of the property, and has so done since January 10, 1906- The defendants and cross-complainants ask that
It is contended by appellant that there Avas no evidence that any notice of cancellation of the contract was given to the appellant prior to March 27, 1906, the day following a tender which appellant says was made March 26, and which she also contends was a sufficient tender. The trial court found that prior to January 10, 1906, the respondents notified appellant that, unless said payment was made on said date, the contract would be cancelled, and that they had elected and determined to cancel it on said date. It Avas also found that on said date the contract Avas completely cancelled, with the full knowledge of the plaintiff. We think the finding is supported by the evidence- The evidence of respondents is to the effect that, when the extension was granted, the respondents notified appellant that they then elected.to cancel the contract, if the payment should not be made on or before January 10, 1906- A letter written by appellant bearing date January 10, 1906, Avas introduced in evidence. It shows clearly that she Avas notified of the election to cancel if the payment Avas not made on or before that date. She was thus notified in advance that the respondents had already elected and declared that the contract should be cancelled on January 10, unless she made the payment on that day or before. She therefore knew that by her own act in defaulting, the cancellation was completed and she was not entitled to any further notice. However', the court found that notice of cancellation was also given in Avriting on
It will be remembered that under the terms of the contract, the appellant at her option might make the second payment and then demand a deed, giving, a mortgage back to secure the third and last payment. The tender which was made included the cash for the second payment, accompanied by a mortgage to secure the last payment. The tendered mortgage bore the date of March 26, and was acknowledged the same day by appellant through her purported attorney in fact. The evidence shows that the power of attorney, which it is claimed gave the authority to make the mortgage, could not have reached this state so as to have been seen and examined by respondents at the time the tender was made. It was introduced in evidence, and shows that it was acknowledged by appellant in Minneapolis, Minnesota, on March 24. The testimony of postal experts showed that it could not have been transferred to Seattle before the tender of the moi’tgage was made. Appellant argues that this is immaterial if the fact be that the power of attorney existed when the mortgage was made. We think that for the purposes of the tender, it is material. Respondents were called upon to act promptly and either to accept or reject the tender, and the thing tendered should have borne upon its face the evidence of its sufficiency. Respondents were not required to hunt up the evidence of its sufficiency, and they were not under obligations to point out wherein the tender
The evidence does not disclose a case of inability to meet the payments, or one of circumstances appealing to equity, as reasonable excuses for defaulting in payment, so much as one of apparent neglect. On November 19, 1905, we find appellant for the first time writing respondents about the payment which was due November 1, and asking for an extension. Again, after the extension was made, until January 10, with the knowledge that the contract would then become cancelled if she did not pay, she waited until that very day and then wrote respondents from Minneapolis, addressing them in Seattle, asking for still further time. The contract is specific in its terms, and was evidently made to meet such apparent indifference and neglect. Time is not only of its essence, but it expressly provides that, upon failure to make either of the payments, all payments theretofore made shall be forfeited, and shall be retained by respondents who shall also be given possession of the land. No sufficient reason appears in this case why the contract so made shall not be enforced against appellant according to its terms. The authorities cited by appellant are to the effect that, even when time is of the essence of a contract and when a default in payment has been made, those facts standing alone do not establish a forfeiture; but that some affirmative action in the way of declaring a forfeiture must have been taken by him who asserts a forfeiture. We have seen that such affirmative action was taken by the respondents in this case. The principles stated by the cited authorities are sound and reiterate the well-known doctrine that equity abhors a forfeiture, but they do not undertake to change the rule of equity that legal con
The judgment is affirmed.
Crow, Fullerton, Rudkin, Dunbar, Mount, and Root, JJ., concur.