75 Wash. 233 | Wash. | 1913
Plaintiff and defendant entered into a contract, the material parts of which follow:
“I hereby give you the exclusive sale of the said described property during a period of 90 days from date hereof, and thereafter until withdrawn by — 10 days — days’ written notice, and upon receipt of the purchase price I agree to make a good and sufficient conveyance of said property, by warranty deed, to the person or persons to be designated by you. The price of said property to be twenty five hundred and twenty five ($2525) net dollars. The terms of payment as follows, towit: Cash .upon delivery of warranty deed or a less price and on other terms if concessions are agreed to. In case of sale of the above described property by any one during the term of this contract, I further agree to furnish a complete abstract of title to said property and pay you a commission of whatever sum is received in excess of net price fixed above.”
Thereafter plaintiff found a purchaser who was willing to buy the property. He made a payment of $200 earnest money on the agreed purchase price of $4,600. A contract was entered into and signed by the defendant and by plaintiff, her agent, and by the purchaser. Parts of this contract material to our present inquiry are as follows:
“The said purchaser shall be furnished an abstract showing ‘good and sufficient title’ to said property, and be allowed ten days for examination thereof; whereupon he agrees to complete the purchase in the manner and upon the terms herein, and in case of his failure so to do, the sum of money herein receipted for shall be forfeited to Charles Somers Company to the extent of their agreed upon commission, and the residue to the owner of the said property. It is further*235 agreed that in the event of failure to convey by “good and sufficient title” within 30 days after the termination of the period allowed for the examination and approval of abstract the said sum of money shall be refunded to the purchaser.”
An abstract was prepared. Some minor objections were made by the attorney for the purchaser. These were corrected, but the abstract contained a copy of a receipt which is of record. It is as follows:
“Received of August Schneider seventy-five and no-100 dollars in full payment of wood on the south point of Hartstine Island, covering 106 acres, lots 1, 2, 3 and 4. $75. Ceba M. Pix.”
This was objected to by the attorney for the purchaser, and defendant having failed to clear the record within the time limited, the sale was not consummated. After the time for performance had expired, plaintiff repaid the $200 earnest money to the purchaser and brought this action to recover the difference between the sum of $2,525 and $4,600, or $2,-075, as a commission. The court held that the contract was not a brokerage contract with promise to pay a commission in any event, but was a joint venture; that no sale having been consummated, no recovery could be had; that the receipt or “wood contract,” as it is called by counsel, did not affect the title to the property; that the title was marketable ; and that the purchaser was able but was not ready and wilbng to purchase the property. Upon these findings, the court entered its conclusions, and finally rendered judgment in favor of the defendant. From this judgment, plaintiff has appealed.
The briefs and arguments of counsel have taken a wide range, but it will be seen that, if defendant offered a marketable title, she is not in fault and plaintiff cannot recover. A “marketable title” has been defined by this court as a title free from reasonable doubt. Wingard v. Copeland, 64 Wash. 214, 116 Pac. 670; Cummings v. Dolan, 52 Wash. 496, 100 Pac. 989, 132 Am. St. 986; Summy v. Ramsey, 53 Wash.
“An interest in land or arising out of it, whether corporeal or incorporeal, must be in grant. It can pass only by deed. The statute of frauds is applicable to all such interests, and with especial reason when they are incorporeal. Its language is very comprehensive. It applies to all estates, interests of freehold, ... or any uncertain interest of, in, or out of any messuages, manors, lands, etc., without regard to any consideration that may have passed.” Huff v. McCauley, supra.
As between vendor and purchaser, a court will not ordinarily try out a title that has been rejected as suspicious, unless it is satisfied to the extent of certain conviction that no other judge would take a different view. Maupin, Marketable Title to Real Estate, page 712. But as between the vendor and an agent who is suing for a commission upon a sale that was not consummated, the court will determine the true state of the title. A vendor is not bound to take the opinion of the
“The terms of payment as follows to wit: Cash upon delivery of warranty deed ... I further agree to furnish a complete abstract of title to said property and pay you a commission, etc.”
Defendant’s agreement with the purchaser, in which the plaintiff joined, was to furnish an abstract showing a good and sufficient title to said property, and in the event of her failure to convey by a good and sufficient title within thirty days after the termination of the period allowed for the examination and approval of the abstract, the money was to be refunded to the purchaser. The purchaser was content to take down his earnest money. He went out of the case with the consent of the plaintiff, and in going he absolved defendant of all liability to perform so far as he was concerned. Plaintiff, being the agent of defendant, could not directly or indirectly sue as for a specific performance, or by indirection recover damages for a failure to perform, yet that is in legal effect what it is trying to do. It has endeavored to put itself in the abandoned camp of the adversary, whereas, a recovery on its own contract can only be sustained on the theory that the contract with the purchaser has been performed or is still enforcible. Defendant had promised plaintiff no more than that she would convey to a purchaser a good title by good and sufficient warranty deed and pay such as “is received in excess of the purchase price,” in other words, out of the purchase price. If the purchaser is acquitted of his contract there can be no purchase price. Whether the undertaking was a joint undertaking, as held by the trial court, in the strict sense of the term, may be open to discussion under the authorities, but considering the contracts before us — and from these the rights’ of the parties must flow—
We have argued the case having in mind the theories advanced by counsel for both sides, that a purchaser would have no right to arbitrarily or capriciously reject the title. That he must show a substantial defect rendering the title non-marketable; that if he does not do so, he will be liable in an action in
We have not discussed the numerous authorities cited by counsel. The rights of the parties depend and can be resolved by a reference to the written contracts and the conduct of the parties. However, it may not be out of place to say that plaintiff relies principally upon the case of Dean v. Williams, 56 Wash. 614, 106 Pac. 130, and defendant relies upon the case of Seattle Land, Co. v. Day, 2 Wash. 451, 27
Gose, Mount, and Parker, JJ., concur.