31 Wash. 327 | Wash. | 1903
— The appellants are husband and wife. On the 24th day of April, 1900, appellant Bamet M. "Whiting executed a written contract for the sale of certain, real estate in the city of Spokane, to respondent 0. H. Doughton. The latter joined in the execution of the contract for himself and also acting in,behalf of his corespondent, Sarah E. Doughton, who is his wife, although she was not named in the contract and did not sign it. Appellant Barnet M. Whiting was the owner of an undivided half only of the real estate, the same being his separate property. His wife and co-appellant, Matilda Whiting, was the separate owner of the other undivided half. Appellant Matilda Whiting did not join in the execution of the written contract, which, by its terms, purported to be an agreement to sell and convey the entire title. By the terms of the contract respondents were to pay $275 for the property. One hundred dollars of said sum was paid at the time the contract was made, and the remaining $175 was to be paid as follows: $10 on the 25th day of May, 1900, and $10 on the 25th day of each succeeding month until the amount was fully paid, together with interest thereon at the rate of eight per cent, per annum from date until paid. Time was made of the essence of the agreement, and it was also provided that, in the event of default on the part of respondents in any of the conditions, they should forfeit the payments already made. In addition to the aforesaid $100 payment, the amounts due on the 25th days of May and June, 1900, respectively, were paid, and thereafter no more paym]ents were, made until the 13 th day of the following September, when the sum of $100 was paid. The last-named payment covered the delinquent install
There is no statement of facts in the record, and much of what we have stated above has been gathered from the court’s findings, and must be treated as conclusive facts in the case. The court further found that appellant Barnet M. 'Whiting and respondent 0.' H. Doughton had a conversation regarding further payments, in which said Whiting told said Doughton that the remaining payments could be made at any time when convenient, and that no advantage would be taken of respondents in the matter of payments. This conversation the court finds was at a time prior to any default under .the contract and that respondents relied upon it. It is further found that because of appellants’ conduct respondents were led to believe that no advantage would be taken of the forfeiture clause, and because of that fact, and relying thereon, respondents did not make their payments for the amounts maturing after May 25, 1901, to which date the last $100 payment had covered all installments. The court concluded as matter of law that appellants, ■ by their conduct in dealing with respondents and accepting payments, waived the forfeiture clause, and that by reason thereof they could not put respondents in default without having first demanded payment of the money remaining unpaid,
“The time performance of a written contract may be waived as well as extended by parol. 1 Beach, Modem Law of Contracts, § 781.
Fraud and conspiracy are alleged by respondents, and, Avhile the court does not use that term in the conclusion, yet it does find certain facts, and from them concludes
“We have recently, in the case of Insurance Company v. Norton (supra, p. 234), shown that forfeitures are not favored in the law; and that courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or an agreement to do so on which the party has relied and acted. Any agreement, declaration, or course of action, on the part of an insurance company, which leads a party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will and ought to estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract.” Insurance Co. v. Eggleston, 96 U. S. 572, 577.
It is assigned that the court further erred in its conclusion that respondents were not in default when this action was commenced. We think this point is settled by the conclusion above discussed, wherein the court concluded that there was a waiver of the time and forfeiture provision of the contract, and that by reason thereof respondents could not be placed in default until after demand for payment and the lapse of reasonable time. 37o demand for such payment appears to have been made, but, upon the contrary, respondents were informed that the contract was canceled, and that no more payments would be received. After waiver of forfeiture, the right of the vendee to acquire title by payment of the residue of the price continues until after demand for such payment by the vendor and a refusal of the vendee. 1 Beach, Modern
Error is assigned upon the courts’ conclusion that respondents are entitled to judgment of dismissal. It is contended that, since appellant Matilda Whiting was a separate owner of an undivided half of the property,- and not a party to the contract, and since her co-appellant undertook to sell something he did not own, respondents cannot, for that reason, enforce their contract. The reasoning concludes, that, since respondents have not an en-forcible contract, appellants are entitled to recover, and that it was error to dismiss their action. The court, however, found that Matilda Whiting, by bringing this action, has claimed and is claiming the benefit of said contract; that she is claiming the benefit of the forfeiture clause therein, and has thereby accepted the contract and ratified the same. We think it must be so held. She knew the money paid was upon the faith of securing the whole title, her own as well as her husband’s, and when she sought by this suit to declare a forfeiture of that money, a part of which was to apply upon payment for her own title, she thereby sought to become a beneficiary of the funds, and must be held to have accepted and ratified the contract from its inception.
Both parties have asked afiirmative relief in their pleadings, and both complain that the court did not give it. Respondents, however, did not appeal, and are, therefore, not in position to complain. It is our view that under the record as it is before us, if respondents kept their tender good they were entitled to the relief they asked; that is to say, to a decree requiring both appellants to convey to them and quieting their title. The record shows that respondents withdrew the amount of their tender from the
Dunbar, Mount and Anders, JJ., concur. Bullerton, C. J., not sitting.