125 Wash. 168 | Wash. | 1923
The plaintiff, Willenbrock, assignee of Fred Leonard, seeks a decree of specific performance against the defendant, Latulippe, requiring him to execute a conveyance of land situated in Pierce county, in pursuance of an option embodied in a lease of the land by him to Leonard. A trial upon the merits in the superior court for Pierce county resulted in the
On January 25, 1918, Latulippe, the owner of the land in question, executed and delivered a written lease therefor to Leonard for the term of four years, Leonard to pay rent therefor at the rate of $10 per month. The lease contains an option in favor of Leonard to purchase the land, reading as follows:
“The lessee is hereby given and .granted a first option to purchase the property hereby leased at the price of $1,500 cash.”
The lease does not contain any provision in terms prohibiting Leonard from assigning his rights thereunder, though it does in terms prohibit him from subletting the premises except by consent of Latulippe. No claim is made against either Willenbroek or Leonard rested upon nonpayment of rent. On November 8,1920, by indorsement upon the back of the lease, Leonard made an assignment of his rights thereunder, as follows:
“For value received, I hereby sell, transfer, assign and set over to Fred W. Gr. Willenbroek, his heirs and assigns, all my right, title and interest in and to the foregoing lease and option to purchase. Hereby authorizing the lessor, Lawrence Latulippe, to receive from the said assignee, all payments due under the terms of this lease and to convey to him or his assigns, the title to the property, instead of to me, . j y
Latulippe did not learn of the making of this assignment until December 1, 1920, when it evidently came to his attention when he was paid the month’s rent then falling due, by the attorney for Willenbroek, the assignee. About that time, or very soon thereafter, Latulippe was requested to indorse upon the lease his approval of the assignment, which he refused to do,
“I will authorize the assignment of my lease to Fred Leonard by him to you according to the terms of my annexed assignment. Attorney Lund gave me $10.00. If this $10.00 comes from you and you do not now want to go ahead with the lease, I will return you your $10.00. Otherwise, I will keep same.”
This was accompanied by a paper which was in form a conditional. approval of the assignment, reading as follows:
“Whereas the following language, towit: ‘The lessee is hereby given and granted a first option to purchase the property hereby leased at the price of $1,500.00 cash or upon such terms as may hereafter be agreed upon between the parties hereto. ’ was inserted by mistake in the annexed lease, and is ambiguous and meaningless, now therefore I hereby approve the assignment of the annexed lease to Fred W. Gr, Willenbrock, his heirs, and assigns with the understanding and agreement that said language is eliminated therefrom. Lawrence Latulippe.”
This paper was not returned by Willenbrock to Latulippe. Thereafter rent was paid each month by Willenbrock and received by Latulippe until September, 1921, when Willenbrock tendered to Latulippe $1,500 in money and demanded conveyance of the land in compliance with the terms of the option to purchase embodied in the lease. The tender was refused by Latulippe; he also refusing to execute a deed for the land as demanded. The tender was kept good and the amount thereof deposited in' court upon the commencement of this suit.
Contention is next made that the terms of the lease prohibiting the subletting of the premises by Leonard prevented Willenbrock from exercising the option to purchase, even if Leonard had such right prior to the assignment of the lease; the argument being that the assignment of the lease was, in legal effect, a violation
Some contention is made rested upon the theory that the parties to the contract have, by practical construction of its terms, caused the option clause embodied therein to be entirely eliminated therefrom; that is, by a practical construction of the contract put upon it by Latulippe and Willenbrock after the assignment. We cannot agree with this contention. After Willenbrock had, by the assignment, become possessed of the absolute right to exercise the option to purchase, but not before, he and Latulippe did have some communication with each other looking to a formal ap
We think the judgment must be affirmed. It is se ordered.
Main, O. J., Fullerton, and Tolman, JJ., concur.