59 Wash. 530 | Wash. | 1910
Lead Opinion
This is an action to enforce specific performance of a contract for the sale of land. A trial resulted in judgment denying the relief prayed for by plaintiffs, and they have appealed to this court. The facts are much involved, and some of them are seriously in dispute. However, we think certain of the facts shown by the record, beyond controversy, will enable us to determine the rights, of the parties. These, so far as necessary for us to notice, are as follows:
On August 14, 1908, the respondent Hendrick Suydam executed and delivered to appellant W. Hammond Wright the following contract for the sale of ten acres of land in King county:
“100.00
“Received of W. Hammond Wright the sum of one hundred dollars as part payment upon purchase price of the following described real estate. [Here follows description.] The balance of the purchase price of the said premises is Seventy-nine hundred dollars to be paid in cash, upon delivery of deed.
“The undersigned owners of said premises agree within fifty days to deliver to the purchaser an abstract of title prepared and certified by a reputable and approved abstract company, showing title to said' property in said owners in fee*532 simple free from all liens and encumbrances as herein stated, and good and marketable, and to convey such title to the purchaser, his heirs or assigns, by warranty deed prepared by the purchaser with full covenants satisfactory to the purchaser.
“If upon investigation title to said premises shall be found to be insufficient in any of the respects aforesaid, either in fact or as shown in the abstract, or shall be unsatisfactory to the attorney for the purchaser, the purchaser may at any time thereafter at his option elect to have the sums of money theretofore paid by him as part payment of the purchase price, immediately repaid to him, and in the event of such election the owners shall return such sums and all further obligation upon their part shall then cease: provided, however, that such election cannot be exercised until after thirty days after the objections to title are pointed out in writing to the owners, which length of time is allowed to them to remedy the same.
“If title to the said described premises shall not be subject to objection in any of the respects aforesaid, and shall be satisfactory to the attorney for the purchaser and the purchaser shall fail upon his part to perform any of the terms of this agreement; then the said, sum of money first above mentioned, shall be retained by the undersigned owners as liquidated damages, and they shall also be entitled to a return to them of the said abstract, and neither party shall be under any further liability.
“Deed is to be executed immediately upon examination of abstract, or within time allowed to owners to cure objections.
“Purchaser is to have twenty days after delivery of abstract within which to examine title.
“Time is of the essence of each of the provisions of this agreement.
“Dated at Seattle, Washington, this August 14, 1908.
“Hendrick Suydam, Owner.”
Since July 14, 1908, the respondent Stevenson Sanders Land Company has been the owner of a certain tract of land containing forty acres, ten acres of which tract is the same land mentioned in the contract above set forth. The only interest the respondent Suydam has ever had in this
In their complaint the appellants refer to both the option and contract ■ under which Suydam acquired his right to purchase the forty acres, referring to the record of the option and contract in the auditor’s office of King county by volumes, pages, and dates, and allege that, “The defendant Suydam has no right, title or interest, in said property other than such as is derived through the said written agreement.” We mention this to show appellants’ knowledge, prior to their commencement of this action, of the nature and extent of Suydam’s interest in the land. The appellants, knowing that Suydam did not own the land in fee and that he for that reason could not convey good title, have never offered unconditionally to pay him the balance of the purchase price upon the contract for the ten acres and. signified their willingness to take from him a conveyance of such title as he possessed. The nature and extent of their
“The plaintiffs now are, and at all times herein mentioned have been ready, willing and anxious, provided good title is shown by proper abstract, to proceed with the purchase of said property under the terms of said option shown in the said Exhibit “A,” and now are and at all times have been ready to pay in full the balance of the purchase price of the said property.”
The Exhibit “A” mentioned, is the contract for the ten acres above set forth. The respondent land company by its answer admits the execution by it of the contract of August 15, 1908, by which it agreed to sell the forty acres to Suydam, and alleges affirmatively that Suydam has paid $6,000 on the purchase price and no more; and further alleges,
“That this defendant does not know and cannot pass upon with safety to itself the difference between the said plaintiffs and the said defendant Hendrick Suydam, but has been at all times ready and willing and is now ready and willing to convey the said lands and premises under the terms of said option to the person or persons entitled to such conveyance upon the performance of the terms and conditions of said option by said person or persons and hereby tenders performance of said option to such person or persons as the court may adjudge entitled to a conveyance herein.”
The word “option” in this allegation clearly means the contract to sell Suydam the forty acres, of August 15, 1908. The land company prays that it be not subjected to costs and that its rights be fully protected. The affirmative matter' in this answer is not replied to, so it stands as admitted.
Learned counsel for appellants, as we understand them, contend that, in view of the attitude of the respondent land company, and its willingness to convey to Suydam or whomsoever the court may determine is entitled to succeed to his interest, the appellants have the right to have such a decree entered in their favor as to cause the balance of the $7,900, due upon their contract with Suydam for the ten acres, to be
It is clear that if the whole of the balance of $7,900, due to Suydam upon his contract for the sale of the ten acres to appellants, were applied towards the payment of the $18,000 due from him to the land company, still neither he, nor any one claiming under him, would be entitled to a conveyance from the land company. The condition upon which the land company is required to convey would still fall far short of performance. There is nothing in this record showing that the land company has ever offered or is required to convey this
The facts not warranting a decree for specific performance at the time of commencement of the action or any time thereafter, and being known to appellants, the question of their damage is not in this case. Peters v. Van Horn, 37 Wash. 550, 79 Pac. 1110; Morgan v. Bell, 3 Wash. 554, 28 Pac. 925, 16 L. R. A. 614.
Other contentions made by counsel relate to disputed facts touching the alleged forfeiture of appellants’ rights under their contract with Suydam. These need not be noticed,
Rudkin, C. J., Crow, Mount, Chadwick, Dunbar, Fullerton, and Gose, JJ., concur.
Rehearing
On Rehearing.
[Decided August 6, 1910.]
Appellants have petitioned for a rehearing of this cause which we have granted, for the purpose of determining whether or not the judgment of the learned trial court should be modified and limited in its effect so as to leave open for adjudication upon the merits the question of appellants’ right to specific performance of the contract sued upon, in the event appellants desire to bring a new action for that purpose. By' our former opinion, it was held, in effect, that appellants should have been denied a decree of specific performance, because, at all times prior to the rendering of the judgment denying such relief, it was not possible for the court to render or enforce an efficient decree of specific performance whatever the rights of the parties might be, by reason of the want of title in respondent Suydam such as would enable him to convey in obedience to any such decree. We were not called upon to express any opinion upon the merits of appellants’ rights as against respondents, that question not being involved when it was once determined that in no event could specific performance be enforced as the title stood at the time of, and prior to, rendering the judgment appealed from.
If the judgment of the learned trial court had gone no farther than to merely deny specific performance and dismiss the case, without assuming to finally adjudicate the rights of the parties under the contract sued upon, we would be content to let our former opinion affirming the judgment rest without modification. But we are reminded that, inadvertently, the full force and effect of the judgment was overlooked in the former review of the case. The judgment by its terms
It is urged by learned counsel for appellants that we should remand the case for further evidence or for a new trial. This we think would not be a proper practice. This case came to an end when the trial court disposed of it, and we are now only to determine what final judgment should then have been entered. Wagner v. Law, 3 Wash. 500, 28 Pac. 1109, 29 Pac. 927, 28 Am. St. 56, 15 L. R. A. 784.
The trial court is directed to vacate its judgment, and in lieu thereof enter a judgment dismissing the action without prejudice to the rights of the appellants to commence a new action. In view of this disposition of the case, we conclude that each party should pay their own costs in this court.
It is so ordered.
Rudkin, C. J., Gose, Fullerton, Chadwick, Mount, Crow, and Morris, JJ., concur.