109 Wash. 292 | Wash. | 1920
J. — This is an action to enforce specific performance of an alleged contract for the sale of real estate. From a judgment of dismissal, appellant brings the cause here for review on appeal.
It appears that, on November 29, 1916, the respondents' executed a written option to purchase to one George F. Hanigan, which described the land, named the purchase price, and provided for the payment thereof within sixty days, and, if not so paid, the earnest money should be forfeited to the vendors and all rights thereunder should cease. Hanigan assigned the option to appellant, and pursuant thereto respondents, who were the owners of undivided interests in the land, executed deeds and deposited them in escrow
“I have had two different conversations with Mr. Girard, endeavoring to induce him to return his deed to the Lumbermens Bank, but he takes the position that he will not, even for an additional $25 for 30 days. However, he pledges himself to immediately forward the same to the bank upon receipt of telegram to me" advising me that the deal is ready to be concluded. I tried to impress upon him how unsatisfactory it was to not have the deed in the bank, but he thinks, or appears to think, that the fact that he can have it there within 24 hours after receipt of notice that the deal is to go through should be sufficient.
“I am not sure if Mr. Delude has returned his deed yet to the bank or not, but I am again writing to him and believe that he will. Mr. Oadeau is contented to leave his deed.
“Will advise you when I again hear from Delude. If Delude forwards deed to bank it will not be so bad, as I am convinced Girard will mail his immediately he thinks that the parties are ready to take up same. ’ ’
No attempt appears to have been made thereafter to obtain a further written extension of the option, but Delude did return his deed to the bank, where it remained until about February 9, 1918, when it was again and finally withdrawn. On February 11, 1918, appellant deposited the purchase price for the land in
The trial court found, on what appears to be the weight of the evidence, that, though Hanigan might have been the agent of respondents in the first instance to find a purchaser, he was acting for appellant in attempting to obtain an extension of the option, and since there is no serious claim that he had any authority to enter into a binding contract of sale, the letter written by him not only was not a contract in writing, but it was no evidence of an oral contract entered into by the respondents. Hardinger v. Columbia, 50 Wash. 405, 97 Pac. 445; Lawson v. King, 56 Wash. 15, 104 Pac. 1118; Arbogast v. Johnson, 80 Wash. 537, 141 Pac. 1140. Had there been an oral contract made after the expiration of the option, there was no part performance pleaded or shown which would take it out of the statute of frauds.
We see.nothing in the conduct of the parties which would cpnstitute a waiver of the strict performance of the terms of a written option. Indeed, there is no
Judgment affirmed.
Holcomb, O. J., Bridges, Mount, and Fullerton, JJ., concur.