American Sav. Bank & Trust Co. v. Mafridge

• Decision Date: 20 September 1910
• Court: Washington Supreme Court
• Parties: AMERICAN SAVINGS BANK & TRUST CO. v. MAFRIDGE.

110 P. 1015

60 Wash. 180

AMERICAN SAVINGS BANK & TRUST CO. v. MAFRIDGE.

Supreme Court of Washington, En Banc.

September 20, 1910

Appeal from Superior Court, King County; C. H. Neal, Judge.

Action by the American Savings Bank & Trust Company against Z. A Mafridge. From the judgment, both parties appeal. Reversed and remanded, with instructions.

Blaine, Tucker & Hyland and Robert C. Saunders for appellant.

Farrell Kane & Stratton, for respondent.

MOUNT J.

The American Savings Bank & Trust Company brought this action against Z. A. Mafridge, personally and as executor of the last will of Katherine Mafridge, deceased, to recover damages in the sum of $41,700 for breach of a contract, and to foreclose a deed given as security for the performance of that contract. Upon a trial of the case, the lower court found in favor of the plaintiff for $4,000, being payments due upon the contract for two months past due, and ordered the trust deed foreclosed for that amount, but denied further relief. Mafridge has appealed from that decree. The plaintiff, American Savings Bank & Trust Company, has also appealed, contending that the court erred in not finding for the plaintiff in a larger amount. The parties will therefore, be designated herein as 'plaintiff' and 'defendant.'

There is no dispute upon the facts in the case, which are, in brief, as follows: In October, 1908, one Harry Welty was the owner by assignment of a lease upon certain premises in the city of Seattle. This lease by its terms was to run until August 1, 1916, at a monthly rental of $1,575 per month for the first five years. On October 12, 1908, Mr. Welty and Mr. Mafridge entered into the following agreement in writing: 'Memorandum of agreement made between Harry Welty and Z. A. Mafridge Company of Seattle, a corporation, and Z. A. Mafridge personally. Whereas, Harry Welty is the owner of that certain lease made by Albert Hansen to the McCarthy Dry Goods Company on the building situated on lots five (5) and eight (8) in block twenty-three (23), A. A. Denny's addition to the city of Seattle dated May 10, 1906, and June 4, 1906, said lease having been purchased by said Harry Welty from the receiver of the McCarthy Dry Goods Company, and, whereas, the said Z. A. Mafridge Company and Z. A. Mafridge personally is desirous of renting said premises from the said Harry Welty, it is agreed by the parties as follows: That the said Z. A. Mafridge Company shall pay for the use of the said premises, for the months of October, November and December, 1908, one thousand five hundred seventy-five ($1,575) dollars per month being the actual amount payable under the lease to Albert Hansen. It is further agreed that the next three months following said time being January, February, and March of 1909, the said Z. A. Mafridge shall pay to the said Harry Welty, the sum of one thousand six hundred seventy-five ($1,675) dollars per month. And it is further agreed that after said March, 1909, and during the remaining period of the lease between Albert Hansen and the McCarthy Dry Goods Company, the said Z. A. Mafridge Company shall pay to Harry Welty the sum of four hundred twenty-five ($425.00) dollars per month in addition to and over and above the rent that the said Harry Welty or his successors in interest shall be obliged to pay to the said Albert Hansen, under the terms and conditions of the said lease heretofore referred to and the said Z. A. Mafridge, personally agrees to secure the said Harry Welty in the payment of said sums by making a deed of trust of lots three (3) and six (6) in block one hundred seven (107) of D. T. Denny's First addition to North Seattle to the said Harry Welty or to the American Savings Bank & Trust Company in trust for such purposes, also half interest in triangular block twenty-eight (28) Heirs Sarah A. Bell's Second addition for like purpose. Nothing herein contained, however, shall in any way prohibit an outright purchase of the said lease at any time by the said Z. A. Mafridge Company or Z. A. Mafridge personally or his successors in interest under this agreement from the said Harry Welty or his successors in interest. In witness whereof the parties hereto have signed this memorandum of agreement this twelfth day of October, 1908. [Signed] Harry Welty. Z. A. Mafridge. Z. A. Mafridge Co., L. Orr, Manager. In case either piece of property is sold at request of Z. A. Mafridge, he shall furnish another piece of equal value as security for the purpose stated. American Savings Bank & Trust Co., J. P. Gleason, Mgr.'

On October 28, 1908, Mr. Mafridge, in order to secure the specific performance of this contract, executed and delivered a deed absolute in form conveying to the plaintiff the property now sought to be held as security for the damages sustained. At the time the contract above set out was entered into, the defendant, Mafridge, took possession of the leased property and occupied the same, by himself or the Boston store, a corporation formed by him, which latter corporation subsequently went into the hands of a receiver, who paid the rent while he occupied the premises as such receiver until the 1st day of May, 1909. The rent for May and June, 1909 was not paid. After the receiver was appointed, the defendant, Mafridge, requested the plaintiff to dispose of the lease to the best advantage. The plaintiff thereupon sold the lease to the original lessor, for a consideration of $10,000. It is contended by the defendant upon this appeal: (1) That the contract above set out was not a valid one, because it is an agreement to lease the property for a term of years and is not acknowledged; (2) that the contract is not a mutual, enforceable contract; and (3) that the plaintiff is not liable for any rent under the evidence. The trial court was apparently of the opinion that the contract above set out was not valid as a...