122 Wash. 52 | Wash. | 1922
-As originally commenced by the plaintiffs, Thiel and wife, this was an action seeking forfeiture of the rights of the defendants, Miller and wife, in a large ranch consisting of certain lands in Adams county in possession of the defendants under
The controlling facts touching the question of mutual mistake may be summarized as follows: On October 15, 1915, and for some time prior thereto, respondents Thiel and wife were the owners of the ranch in question. On that day they entered into a contract with appellant Henry F. Miller for the sale of the ranch to him. Omitting the description of the land and certain other portions of the contract, we quote all of the portions thereof necessary to be here noticed, as follows:
“Witnesseth: That the vendors, for and in consideration of the covenants hereinafter contained, to be performed by the vendee, have agreed to sell and convey and by these presents do sell and convey to the vendee and the vendee has agreed to buy, and by these presents does hereby agree to buy from the vendors, the following-described real property, situated in Adams County, Washington, to-wit: . . . and to*54 pay therefor the sum of $30,712.50 in the following manner to-wit; $7,500 upon the ensealing and delivery of this contract; the vendee also to assume, and he hereby agrees to pay, a certain mortgage in the sum of $12,000 due on September 23, 1924, and interest on the same in favor of the Northern Life Insurance Company, the remainder of said consideration,to-wit: the sum of $11,212.50, to be paid in eight equal, annual installments, the first of which shall be due on October 15,1920, all of said deferred payments to draw interest at the rate of 6% per annum from this date until paid.
“The vendee further agrees to secure the payment of each of the above-mentioned installments and interest on said mortgage indebtedness, by a first crop mortgage upon the crop of grain to be produced and harvested during the year when any such installments and interest shall become due.
“ The vendee hereby further agrees . . . to pay all taxes, ordinary or extraordinary, which may be levied, or assessed against said real property including taxes due in 1920. . . .
“It is further understood and agreed that the vendee may have the privilege of paying all or any number of the above-mentioned deferred installments at any interest paying period.
“Immediately upon the full payment of said purchase price, the vendor shall make, execute and deliver to the vendee a good and sufficient warranty deed to the above-described real property, and shall furnish an abstract showing merchantable title to the above-described premises.
“In the event of the failure of the vendee to comply with the terms of this agreement, the vendors shall be released from all obligations, in law or equity, to convey said property, and the rights of the vendee shall be forfeited, and all payments which may have been made by him on said property shall be considered as damages hereby liquidated, it being expressly understood that time is of the essence of this agreement.
“It is further understood and agreed that the vendee shall be entitled to immediate possession of the above-described property, . .”
“To secure the payment of the principal sum of twelve thousand dollars ($12,000) with interest thereon. Both principal and interest being payable in United States gold coin of the present standard of weight and fineness, or its equivalent, as evidenced by one principal note executed by the mortgagors to the mortgagee of even date herewith.”
This, it will be noticed, does not disclose when the principal of the loan was to be paid, nor whether in one lump sum or in installments, nor the agreed rate of interest. The note evidencing the loan was, at the time of the negotiations between Thiel and Miller for the purchase of the ranch, in the hands of the mortgagee insurance company at Seattle, and hence not readily accessible for inspection, since the negotiations were being carried on between the parties in Adams county. The evidence we think calls for the conclusion:
The principal contention here made in behalf of appellants is that there was a mutual mistake of the parties as to the conditions of the loan secured by
“When parties have entered into a contract or arrangement based upon uncertain or contingent events, purposely as a compromise of doubtful claims arising from them, and where parties have knowingly entered into a speculative contract or transaction, — one in which they intentionally speculated as to the result, — • and there is in either case an absence of bad faith, violation of confidence, misrepresentation, concealment, and other inequitable conduct mentioned in a former paragraph, if the facts upon which such agreement or transaction was founded, or the event of the agreement itself, turn out very different from what was expected or anticipated, this error, miscalculation, or disappointment, although relating to matters of fact, and not of law, is not such a mistake, within the meaning of the equitable doctrine, as entitles the disappointed party to any relief either by way of canceling the contract*58 and rescinding the transaction, or of defense to a suit brought for its enforcement.”
In Kowalke v. Milwaukee Electric Railway & Light Co., 103 Wis. 472, 79 N. W. 762, Justice Dodge, speaking for the court, makes the following very pertinent observations touching the subject of mutual mistake and what constitutes such a mistake in law:
“The most philosophical definition we have found is that presented by Pomeroy (Eq. Jur. § 839): ‘An imconscious ignorance or forgetfulness of the existence or nonexistence of a fact, past or present, material to the contract.’ This definition contains several elements, each of which, as above suggested, must be explained and qualified in its practical application. Thus, the ignorance must be unconscious; that is, not a mental state or conscious want of knowledge whether a fact which may or may not exist does so. Kerr, Fraud & M. p. 432. This idea is involved in, and furnishes a reason for, the exception pointed out by Dixon, C. J., in Hurd v. Hall, 12 Wis. 112, 127, on authority of Kelly v. Solari, 9 Mees. & W. 54, viz: Where a party enters into a contract, ignorant of a fact, but meaning to waive all inquiry into it, or waives an investigation after his attention has been called to it, he is not in mistake, in the legal sense. These limitations are predicated upon common experience, that, if people contract under such circumstances, they usually intend to abide the resolution either way of the known uncertainty, and have insisted on and received consideration for taking that chance.”
This is not a case of mistake of either party in erroneously consciously assuming as a fact that which was not a fact, as in Kelsey v. Mackay, 65 Wash. 116, 117 Pac. 714; Stahl v. Schwartz, 67 Wash. 25, 120 Pac. 856; and Lindeberg v. Murray, 117 Wash. 483, 201 Pac. 759; but it was a case of all the parties voluntarily entering into a contract in the face of their conscious, present want of knowledge of facts, which they all then manifestly concluded would not influence their
Appellants not having any right of rescission of the contract, and it being in full force and effect as to all of its terms, we see no escape from affirming the judgment of the trial court awarding to respondents forfeiture of appellants’ rights in the ranch, and also forfeiture, as liquidated damages, of all that portion of the purchase price they have paid to appellants; since it seems to us that the trial court was fully justified by the evidence in concluding that appellants had faffed to comply with the terms of the contract as written, in substantial respects, and had been given by respondents fair opportunity to fully comply therewith before they elected to exercise their right of forfeiture and notified appellants accordingly. Indeed, counsel for appellants does not seejn to seriously contend but that the conditions of the contract as written have not been timely complied with by them. This record, we may further observe, renders it fairly plain that appellants do not intend or desire to further comply with the terms of the contract as written.
Counsel for appellants contend that the trial court erred to their prejudice in refusing to grant them a
It is finally contended in appellants ’ behalf that the trial court erred to their prejudice in issuing an order at the instance of counsel for respondents in the nature of a writ of assistance looking to the restoration to them of the possession of the ranch. The argument in support of this contention, somewhat inconsistent with that advanced in support of appellants’ claimed right of trial by jury, seems to be that the action as commenced by respondents was not a seeking by respondents to recover possession of the ranch. It is true that the prayer of respondents’ complaint does not in terms ask for recovery of possession of the ranch; and the same may be said of the judgment that
The judgment is affirmed.
Bridges, Fullerton, Tolman, and Mitchell, JJ., concur.