Adams Marine Service Inc. v. Fishel

• Decision Date: 06 May 1953
• Docket Number: No. 32225
• Citation: Adams Marine Service Inc. v. Fishel, 257 P.2d 203, 42 Wn.2d 555 (Wash. 1953)
• Court: Washington Supreme Court
• Parties: ADAMS MARINE SERVICE, Inc. v. FISHEL et al.

Page 555

42 Wn.2d 555

257 P.2d 203

ADAMS MARINE SERVICE, Inc. v. FISHEL et al.

No. 32225.

Supreme Court of Washington, Department 1.

May 6, 1953.

Metzger, Blair, Gardner, & Boldt, Tacoma, for appellants.

Metzler & McCormick, Tacoma, for respondent.

HILL, Justice.

This is an action for specific performance of an oral contract to convey land. The defendants are Ethel G Fishel, widow of Charles R. Fishel, deceased, and the executors of his estate. The defendants deny the making of any contract and by cross-complaint seek to quiet the widow's title to the land (she having acquired, during the course of the probate proceedings, the interest of the only other heir) and, on her behalf, to recover damages for trespass on the land in question and damages to other property.

In his lifetime Dr. Charles R. Fishel and his wife owned lots 2 and 3, block 5, Day Island, Pierce county, Washington, being waterfront property for the most part below the hightide line. The westerly boundary of the lots is Island boulevard, and they extend easterly toward deep water. Immediately west of these lots and across Island boulevard is residence property now belonging to Mrs. Fishel which prior to 1946 had been occupied by Dr. and Mrs. Fishel as their home. The plaintiff, Adams Marine Service, Inc., owns property east of Island boulevard and south of lots 2 and 3, on which it carries on a boat servicing and moorage business.

The acquisition and dredging of the easterly, or deep-water, portion of lots 2 and 3 would increase the moorage facilities of the corporation. So early in 1948 Ernest G. Adams, then the principal stockholder, president and manager of the corporation, negotiated with Dr. and Mrs. Fishel for the purpose of acquiring title to the easterly portions of those lots. Whether those negotiations resulted in a definite and certain oral agreement which subsequent developments rendered enforcible is the question to be determined in this litigation.

The trial court found that there was a definite oral agreement between the corporation and the Fishels, whereby the Fishels were to sell and the corporation was to purchase the easterly portions of lots 2 and 3. The terms of the oral agreement, as found by the trial court, were that the westerly portion of lots 2 and 3 would be retained by the Fishels; that this portion would have an area sufficient to provide two legal building sites, one for each lot, each having a minimum of four thousand square feet; and

'That it was agreed between the parties to said oral agreement that in consideration of the sale of the said property by the Fishels' to the plaintiff, the plaintiff corporation was to:

'(a) At its own expense, dredge the easterly portion of said Lots 2 and 3 extending into the Sound or Bay;

'(b) At its own expense, to deposit the dredgings so obtained upon the upland or westerly portion of said Lots 2 and 3;

'(c) At its own expense, to bulldoze and level off on a plane with Island Boulevard, * * * the dredgings so deposited on the uplands;

'(d) At its own expense, to remove the old Fishel boat house and derelict logs from the premises. * * *

'(e) To pay to the Fishels' the sum of $1,000.00. 'That upon the performance of the conditions and provisions above set forth by the plaintiff, and the payment of $1000.00, as above provided, it was agreed that the Fishels' were to make, execute, and deliver to the plaintiff, a good and sufficient warranty deed conveying the said premises to the plaintiff, free and clear of all encumbrances.'

The court also found:

'That the plaintiff relying upon said oral agreement and pursuant thereto, at an expenditure of approximately $1300.00 and with the full knowledge and express oral consent of Ethel G. Fishel, did dredge the property as agreed upon between the 9th and 18th (inclusive) of March, 1948. That the plaintiff did further with no objection from anyone, bulldoze and level off said dredgings on the westerly or upland of said Lots 2 and 3 as agreed upon at an expenditure of approximately $120.00. That the plaintiff did, at its own expense, and with full knowledge and consent of Ethel G. Fishel, and as agreed upon, remove the Fishel boathouse and old logs upon the premises. That thereafter the plaintiff did tender to the said Ethel G. Fishel in her individual capacity and as coexecutor of the estate of her deceased husband, Charles R. Fishel, the sum of $1,000.00, which tender was refused. That the said sum of $1,000.00 was deposited prior to trial with the Clerk of Pierce County, Washington, where said sum remained and still is on deposit with said Clerk. * * *

'That the plaintiff in reliance upon said oral agreement and as a result thereof, made extensive and permanent and costly improvements on his own properties, which improvements and facilities were made and designed for use only in connection with the use of the property here in question.

'That in addition thereto, the plaintiff made permanent improvements on the property itself that is here in question pursuant to and in reliance upon said oral agreement.

'That at all times since the oral agreement was entered into by the parties as hereinabove set forth and during all of the period of said improvements, the property in question was utilized and within the sole and exclusive possession of the plaintiff in accordance with the oral agreement. That no objections whatsoever were made thereto or to the possession of the plaintiff, except as may be inferred by this action itself.'

The trial court, having found that the plaintiff, Adams Marine Service, Inc., herein called 'the corporation,' was entitled to a decree of specific performance, dismissed the cross-complaint. The defendants appeal.

Appellants vigorously urge that four elements essential to a binding contract are left uncertain:

Re claimed uncertainty No. 1: It is clear to us that the parties contemplated the retention by the Fishels of an area large enough for two building sites. The trial court found that the description in the conveyance which the corporation seeks to have executed satisfies this requirement and is in accord with and pursuant to the agreement of the parties.

Re claimed uncertainty No. 2: There is no apparent basis for the contention by the appellants that the corporation guaranteed that the material to be placed on the portion of the lots retained by the Fishels would remain there or that the sites would be suitable for building without being retained by piling and bulkheading.

Re claimed uncertainty No. 3: We are convinced that the matter of moorage for Dr. Fishel's boat was not intended to be a covenant running with the land, but was a courtesy to be extended to him.

Re claimed uncertainty No. 4: Common sense indicates that the reservation of the north fifteen feet of lot 2 was not intended as an open waterway, but to provide access to deep water if and when the building sites were sold or developed.

The agreement between the Fishels and the corporation, as testified to by Ernest G. Adams, contained the essential elements of a valid contract for the sale and purchase of the portion of lots 2 and 3 described in the findings and decree. If the trial court believed his testimony, and it did, the standards of clarity and certainty which we have heretofore laid down for the establishment of the terms, character and existence of such contracts have been fully met. See, for statement of standards, Golden v. Mount, 1949, 32 Wash.2d 653, 671, 203 P.2d 667, quoting Payn v. Hoge, 1944, 21 Wash.2d 32, 39, 149 P.2d 939; and Groeneveld v. Dean, 1952, 40 Wash.2d 109, 111, 241 P.2d 443, quoting Granquist v. McKean, 1947, 29 Wash.2d 440, 445, 187 P.2d 623.

We turn, therefore, to a consideration of the assignment of error which challenges the competency of Ernest G. Adams as a witness.

Appellants rely upon the provision in RCW 5.60.030, Rem.Rev.Stat., § 1211, which is as follows:

'No person offered as a witness shall be excluded from giving evidence by reason of his interest in the event of the action, as a party thereto or otherwise, but such interest may be shown to affect his credibility: Provided, That in an action or proceeding where the adverse party sues or defends as executor, administrator, or legal representative of any deceased person, or as deriving right or title by, through, or from any deceased person, or as the guardian or conservator of the estate of any insane person, or of any minor under the age of fourteen years, then a party in interest or to the record, shall not be admitted to testify in his own behalf as to any transaction had by him with, or any statement made to him, or in his presence, by any such deceased or insane person, or by any such minor under the age of fourteen years * * *.'

The authorities are generally agreed that qualification or disqualification of a witness depends upon his interest at the time he testifies. 58 Am.Jur. 178, 181, Witnesses, §§ 280, 287. Respondent urges that, having disposed of all of his stock by bona fide transactions, Mr. Adams does not come within the bar of the quoted statute. Appellants contend that, since Mr. Adams owned stock at the time the suit was commenced, he cannot, be disposing of it prior to trial, qualify himself as a witness. The trial court found:

'That at the time of the incorporation of said plaintiff [respondent] and for sometime thereafter, the said Ernest G. Adams was the President and Manager thereof, and its principal stockholder. That after the date of the oral agreement hereinafter mentioned and after the death of the said Charles R. Fishel, the said Ernest G. Adams disposed of all of his stock in said corporation and resigned his position as an officer, employee and director thereof.

'That all sales of stock made by Ernest G. Adams were bona fide for valuable consideration and in good faith and were not made for the purpose of qualifying Ernest G. Adams as a witness to avoid the bar of the 'dead man' ...