Artz v. O'Bannon

• Decision Date: 11 April 1977
• Docket Number: No. 1616--III,1616--III
• Citation: 17 Wn.App. 421,562 P.2d 674
• Parties: Patrick A. ARTZ and Margaret R. Artz, husband and wife, Respondents, v. Edward C. O'BANNON and Bonnie O'Bannon, husband and wife, Appellants, and Robert M. Tippett, Jr. and Jane Doe Tippett, d/b/a Tippett Land and Mortgage Company, a Washington Corporation, Defendants.
• Court: Washington Court of Appeals

Page 421

17 Wn.App. 421

562 P.2d 674

Patrick A. ARTZ and Margaret R. Artz, husband and wife, Respondents, v. Edward C. O'BANNON and Bonnie O'Bannon, husband and wife, Appellants and Robert M. Tippett, Jr. and Jane Doe Tippett, d/b/a Tippett Land and Mortgage Company, a Washington Corporation, Defendants.

No. 1616--III.

Court of Appeals of Washington, Division 3.

April 11, 1977.

Rehearing Denied June 2, 1977.

Robert S. Day, Peterson, Taylor, Day & Shea, Pasco, for appellants.

Michael R. Pickett, Bennett, Carroll & Pickett, Richland, for respondents.

GREEN, Judge.

Plaintiffs, Patrick and Margaret Artz, executed an earnest money receipt in which they agreed to purchase certain real property from defendants, Edward and Bonnie O'Bannon. When these defendants refused to perform, plaintiffs brought this action for specific performance and, alternatively, for damages and refund of their earnest money. The trial court entered judgment for plaintiffs in the amount of the earnest money, but refused to grant specific performance or damages. The court also refused to award attorney's fees to either party. From this judgment, both parties appeal challenging certain findings of fact and conclusions of law.

The O'Bannons listed for sale their farm acreage, house and outbuildings with Robert Tippett of Tippett Land and Mortgage Company. On May 16, 1973, the Artzes executed an earnest money receipt to purchase the property for $85,000, payable by $2,000 earnest money, $19,250 downpayment at the time of closing, and the balance of $63,750 by contract according to terms outlined in the agreement. The earnest money receipt was accepted and signed by the O'Bannons. The parties agree that the transaction was to be closed no later than September 1, 1973.

The Artzes expected to raise the downpayment by prompt sale of their home, permitting a closing in June, 1973. Believing the sale would close early, the O'Bannons permitted them to take possession of some of the farm acreage in May. However, plans for an early closing were frustrated when several proposed sales of the Artz home 'fell through.' In mid-July, Mrs. Artz informed Mr. O'Bannon that another prospective purchaser for their home was attempting to secure financing. She inquired whether Mr. O'Bannon would be willing to extend the September 1 closing date if additional time was necessary to complete this sale. Mrs. Artz testified that Mr. O'Bannon indicated 'that if he was sure the money was there . . . for a certain period of time he would be willing to go along with it.' However, the prospective sale did not materialize. The Artzes had no further conversation with Mr. O'Bannon concerning an extension of the September 1 closing date.

In mid-August, Mr. Tippett, aware of the Artzes inability to sell their home, contacted Mr. O'Bannon concerning the possible need for an extension of the closing date. Mr O'Bannon set forth specific conditions to be met before he would consider an extension. These conditions were communicated to Mr. Artz but were not met. At trial, he testified that he 'felt that they (the conditions) would be taken care of at the time of closing.' The Artzes then began pursuing a prior application to C.I.T. Financial Services for a mortgage loan for the down payment. Mr. Artz claims that Mr. Tippett told him there would be no problem with the O'Bannons regarding an extension. Mr. Tippett's testimony does not corroborate this claim, but rather, contradicts it. Mr. Tippett testified that he contacted C.I.T. during the third week in August and was informed the application was awaiting approval. Thereafter, he contacted Mr. O'Bannon regarding a possible extension, but none was given because, as he testified, O'Bannons were very skeptical at this point since so many of the Artzes' prospective sales had fallen through and this might be another disappointment.

The C.I.T. loan was approved on August 30, but the funds could not be disbursed for several days. On August 31, Mr. Tippett informed Mr. O'Bannon of the loan approval and that the transaction could not close on September 1. Mr. O'Bannon responded, 'They don't have the money, in order words', and stated that he was going out of town and would consider 'this as a whole new deal' when he returned. Mr. Tippett further testified that he did not tell the Artzes they would have an extension when the O'Bannons returned and that the O'Bannons did not in fact give an extension. To the contrary, Mr. Artz testified that Mr. Tippett told him the O'Bannons would work everything out when they came back.

While the O'Bannons were out of town, plaintiffs offered payment to Mr. Tippett by check postdated to the date the funds from C.I.T. could be received. This offer was refused. Mr. Artz testified that on September 17 he offered Mr. O'Bannon the downpayment which was also refused. The O'Bannons subsequently sold the subject property plus an additional 6 1/2 acres to another party for $95,000.

First, plaintiffs assign error to the following findings of fact:

V.

There was no agreement among the parties to extend the closing date of the Earnest Money Agreement.

VII.

The plaintiffs were not ready, able and willing to perform the Earnest Money Agreement on or before September 1, 1973.

VIII.

The defendants did not waive compliance with the requirements that the transaction close on or before September 1, 1973.

IX.

There were no actions or representations of defendants, relied upon by the plaintiffs, which led the plaintiffs to fail to close the transaction on or before September 1, 1973.

It is contended that these findings are not supported by substantial evidence. Plaintiffs argue that the court should have found that defendants' action and conduct indicated a willingness to grant an extension which was relied upon by plaintiffs and constituted an implied agreement to extend or waive the closing date. We disagree.

Findings of fact that are actually conclusions of law will be treated as such, State v. Reader's Digest Ass'n, Inc., 81 Wash.2d 259, 501 P.2d 290, Appeal dismissed, 411 U.S. 945, 93 S.Ct. 1927, 36 L.Ed.2d 406 (1972); findings that are 'fact' findings will not be disturbed on appeal if supported by substantial evidence. Sylvester v. Imhoff, 81 Wash.2d 637, 503 P.2d 734 (1972); True's Oil Co. v. Keeney, 76 Wash.2d 130, 455 P.2d 954 (1969). Here, the 'fact' findings are supported by substantial evidence and support the conclusions of law. As to plaintiffs' other argument, it is the rule that the seller must unequivocally evince an intention to waive the time limit of the earnest money receipt, or by his conduct lead purchasers to their default to support waiver or estoppel. Nadeau v. Beers, 73 Wash.2d 608, 440 P.2d 164 (1968); Birkeland v. Corbett, 51 Wash.2d 554, 320 P.2d 635 (1958); Bowman...