Auve v. Wenzlaff

• Decision Date: 30 April 1931
• Docket Number: 22779.
• Citation: 298 P. 686,162 Wash. 368
• Parties: AUVE et ux. v. WENZLAFF et al.
• Court: Washington Supreme Court

298 P. 686

162 Wash. 368

AUVE et ux. v. WENZLAFF et al.

No. 22779.

Supreme Court of Washington

April 30, 1931

Department 1.

Appeal from Superior Court, Yakima County; Dolph Barnett, Judge.

Action by Paul Auve and wife, against R. D. Wenzlaff and wife, P. A Gaul and wife, A. F. Fredricks and wife, and others. From the judgment, defendants Gaul and wife, and Fredricks and wife appeal, and plaintiffs cross-appeal.

Affirmed upon principal appeal, and reversed upon cross-appeal.

Grady &amp Velikanje and John H. Lynch, all of Yakima, for appellants.

La Berge, Cheney & Hutcheson, of Yakima, for respondents.

HOLCOMB J.

In this cause respondents sued to recover, from all the defendants named in the action, certain installments past due on a real estate contract. All of the installments were not due at the time of bringing suit. At trial, it was conceded by respondents that inasmuch as respondents were attempting to enforce a written contract and for a decree to that effect, the case was one of equitable cognizance. That this was correct is settled by our decisions in Hogan v. Kyle, 7 Wash. 595, 35 P. 399, 38 Am. St. Rep. 910, and Anderson v. Wallace Lumber & Manufacturing Co., 30 Wash. 147, 70 P. 247; McCutchen v. Brink, 129 Wash. 103, 224 P. 605.

The contract, for the sale of real estate in Yakima county, was executed on April 28, 1926, by respondents as vendors, wherein they agreed to sell to Wenzlaff and wife, Gaul and wife, and Fredricks and wife, a ranch and certain personal property for a total purchase price of $6,000, of which $1,300 was paid at the time and the balance of $4,700 was payable $1,200 on January 2, 1927, $500 on January 2, 1928, and $500 on January 2 of each year thereafter until the full amount had been paid. In addition to the original payment of $1,300, the vendees have made the following payments: $500 on October 11, 1926; $200 on February 15, 1927; $25 on April 16, 1927; $50 on November 6, 1927; $200 on December 22, 1927; and $500 on December 30, 1927. After the execution of the contract the vendees went into possession of the property, but have failed to pay any further part of the purchase price since December 30, 1927, or to pay the taxes and water assessments according to the terms of the contract.

On April 4, 1927, appellants Gaul and wife assigned their interest by quitclaim deed to defendants Wenzlaff and appellants Fredricks, who orally assumed and agreed to pay all assessments , water charges and taxes, and all unpaid installments under the contract.

The contract is very lengthy and cannot, within proper limits of this opinion, be set out in full. It prohibits any assignment thereof without the written consent of respondents, or that any independent contract of sale or lease of the premises be entered into by the vendees with any third person without first having obtained the written consent of the vendors so to do, which written consent must be indorsed on or attached to the contract. The Gauls assigned their interest in the contract without having obtained the consent of the vendors. Subsequent to such assignment, respondent, the husband, approached Gaul and requested that payments be made, at which time Gaul told him that he had sold his interest to Wenzlaff and Fredricks and that respondents would have to look to them for money. In May, 1927, respondents asked Fredricks for money under the contract and were told by Fredricks that he did not have any money; that he had no means with which to carry on his part of the transaction and told respondents that, if satisfactory to them, he was negotiating to transfer his interest to Wenzlaff. Fredricks further said that he had no experience in farming and that Wenzlaff was making arrangements to pay respondents, upon which respondent, the husband, said 'O. K.' On May 18, 1927, appellants Fredricks quitclaimed their interest to Wenzlaff, and there was an oral agreement between the parties that Wenzlaff would assume all payments and liabilities under the contract. Thereafter Wenzlaff made certain payments to respondents. In September, 1927, Wenzlaff, the husband, told respondents that he had a deal pending with one Schofield for the purchase of his interest in the contract. Wenzlaff further said that respondents would have to look to Schofield, who thereafter, through another, farmed the land in 1928. The Schofield assignment was made to Dorothy Schofield, a minor, who afterwards in this suit filed her verified answer disaffirming and repudiating the transfer. On about January 1, 1929, respondents, through their attorney, advised Gaul, Fredricks, and Wenzlaff that the payments were not being made under the contract and made demand upon them for payment.

It is to be noted on the threshold of the discussion herein that there is no evidence of any formal or actual release by respondents of any of the original vendees from their contractual obligations.

Respondents included in their action appropriate allegations on the contract and sued to recover besides the installments of the purchase price due January 2, 1928, and January 2, 1929, water assessments and taxes, which all the defendants had failed to pay and which respondents had paid for the protection of their security.

The court granted judgment in favor of respondents, as prayed, except that recovery of taxes was denied. Only the Gauls and the Fredricks have appealed from the decree, and respondents have cross-appealed from the denial of the recovery of taxes.

Appellants open their argument with the assertion that the trial court seemed to stress in its memorandum opinion that they had set up a defense of contractual release, whereas, on the contrary, their defense was one of waiver, acquiescence, and estoppel in pais.

The discussion of appellants' contention is elaborate and intricate. They assert, first, that respondents agreed to relieve them of all personal liability under the contract; and, second, that respondents are estopped, as to them, in pursuing any other remedy than a forfeiture of the contract.

It is obvious from the statement of the facts as to what occurred in connection with the transactions with the other parties subsequent to the original parties to the contract of sale, that there never was any agreement made between respondents and any of the parties that respondents would relieve the original contract parties from their obligation. Respondents had the legal right to rely upon the written contract, but had, also, the right to permit other perties to become additionally liable either to the vendees or to them without impairing their own contract in writing. It cannot be assumed that because the original vendees brought in other parties to relieve them of their obligations, unless there was a meeting of the minds between them and respondents, that they, the original parties liable under a valid contract in writing should be released and relieved of their obligations. There is no question but that respondents consented to the respective assignments. But respondents were never the moving parties. When they would demand money from the parties originally liable, they would then be referred to some other subsequent party. Respondents always insisted that the payments be made as provided in the contract and, of course, did not care who actually made the payments. Respondents' acquiescence in such assignments, unless they agreed to release...