Barton v. Tombari

• Decision Date: 23 May 1922
• Docket Number: 16974.
• Citation: 207 P. 239,120 Wash. 331
• Parties: BARTON v. TOMBARI et al.
• Court: Washington Supreme Court

207 P. 239

120 Wash. 331

BARTON v. TOMBARI et al.

No. 16974.

Supreme Court of Washington

May 23, 1922

Department 2.

Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.

Suit by Lucy Barton against Vito Tombari and another. Decree for defendants, and plaintiff appeals. Decree modified.

Holcomb J., dissenting.

Harry Rosenhaupt and Lucius G. Nash, both of Spokane, for appellant.

Fred S Duggan, of Spokane, for respondents.

HOVEY J.

On June 1, 1920, appellant entered into a contract with the respondents for the purchase of a lot in the city of Spokane upon which were situated two dwelling houses. The contract price was $4,000 and of this $700 was paid upon the execution of the contract, and the balance was payable in installments. The contract does not contain any time essence provision, nor any other provision for forfeiture, nor any provision making all payments due upon default in one or more payments, but merely provides that, upon full payment being made, deed shall be delivered, and the deed and a copy of the contract were placed in escrow, and a copy of the contract was recorded in the office of the county auditor. The appellant was given immediate possession of the premises but both houses were rented at intervals, and the actual possession has been that of tenants throughout the action.

At the time of the commencement of this action appellant resided near Spokane, but respondents left the state upon the execution of the contract, and have been represented throughout by Fred S. Duggan, their attorney.

On September 30, 1920, appellant filed a complaint seeking the rescission of this contract and the restoration to her of the initial payment of $700. The ground of rescission was misrepresentation as to the condition of the property in two respects, viz.: It is alleged that the respondents represented that the floors in the houses were good when in truth they were bad, and that the property was connected with the city sewer when in fact it had cesspools, and no city sewer was available except at an expense of about $1,000. At the time of commencing the action appellant also applied for and secured a writ of attachment against the property contracted to be conveyed.

On October 13, 1920, there was served the following instrument:

'In the Superior Court of the State of Washington in and for the County of Spokane.

'Lucy Barton, Plaintiff, v. Vito Tombari and Filomena Tombari, Defendants.

'Demand for Possession and Return of Property.

'To Lucy Barton, and to Rosenhaupt & Grant and Lucius G. Nash, Your Attorneys:

'The undersigned Vito Tombari and Filomena Tombari demand possession of the two houses heretofore bought by you from us, together with the furniture bought as a part of said property in said contract, with the keys to the premises, which you will forthwith deliver to the undersigned.

'Dated at Spokane, Washington, October 13th, 1920.

Vito Tombari,

'Filomena Tombari,

'By Fred S. Duggan, Attorney and Agent.

'We hereby consent to the surrender of said property and possession thereof is hereby given to defendant.

'Personal service of the foregoing demand for possession is hereby admitted on us at Spokane, Washington, Oct. 13, 1920.

'Rosenhaupt & Grant.

'Lucius G. Nash.'

Thereupon a meeting took place in the office of Mr. Nash, one of the attorneys for appellant, between the appellant, her attorneys, and Mr. Duggan, as attorney for the respondents. There is some controversy as to what was said at this meeting, but we do not deem the conflict as material, as it terminated in the following written instrument signed by the appellant, and accepted by Mr. Duggan:

'Spokane, Washington, October 18, 1920.

'Mr. Fred S. Duggan, Attorney for Vito Tombari, Spokane, Washington--Dear Sir: Pursuant to the cancellation of the contract between Lucy Barton and Vito Tombari for purchase by said Lucy Barton of lot fourteen (14), block seventy-two (72), subdivision of school section sixteen (16), township twenty-five (25), range forty-three (43), city of Spokane, and in compliance with the demand made by you for the surrender of said premises and to effectuate the cancellation of the contract made between said parties, you are authorized to take immediate possession of said premises and this is your authority to present to Mrs. Cady, now in possession of the small house on the premises. I am

'Yours truly,

Mrs. Lucy Barton.'

The agreement as prepared used the word 'rescission,' but at the request of Mr. Duggan this was changed to 'cancellation.'

The testimony on behalf of appellant is that after Mr. Duggan returned to his office a telephone conversation took place, in which the attorney for appellant asked for the return of the $700 and called attention to the decision of this court in Jones v. Grove, 76 Wash. 19, 135 P. 488. It is not disputed that later in the same day Mr. Duggan served upon the attorneys for appellant the following:

'Oct. 18, 1920.

'Mrs. Lucy Barton, Milwood, Wash.; Rosenhaupt & Grant, Attorneys--Dear Madam and Gentlemen: I desire to make plain to you that the letter you handed to me today regarding the property sold by Vito Tombari to Lucy Barton, and for the payment of which she is in default, is not accepted as a cancellation of the contract.

'In your complaint in this action you tendered back possession of the property, but upon conditions. I thereafter on Oct. 13th demanded the possession which you tendered, and you by writing consented to surrender it back, and promised to get the keys for me. Today you said you were ready to complete redelivery of the property, and when I went to your office you delivered instead the letter of the 18th in which your purport to cancel the contract between Tombari and Barton.

'Possession is demanded, but cancellation is not. We mean to have possession and enforce the terms of the contract. I have no authority from my client to cancel his contract, but have authority to take possession of the property and foreclose upon the same to enforce his contract.

'Please advise me promptly whether you mean to give me possession under these circumstances, which are the circumstances in mind when we had our former talk, or whether you decline to give possession. I want possession without any string to it, and if I cannot have it from you will apply to the court for it.

'Yours truly,

Fred S. Duggan.'

On October 19 respondents served an answer denying the allegations of misrepresentation and praying for the foreclosure of their contract. Thereafter appellant replied setting up the facts we have referred to which had occurred since the commencement of the action, and alleging that respondents were then in possession of the premises, and demanding relief as prayed in her complaint. The case was duly tried before the court, who made an examination of the premises, and found against appellant upon the charge of fraud, refused to treat the contract as canceled, but entered a decree of foreclosure subject to a provision for reinstatement of the contract upon the payment of certain damages.

The personal judgment was for the sum of $837.63, being the amount of the installments then past due and unpaid. The decree provides that the interest of the appellant in the property shall be sold on execution and the proceeds applied upon the judgment, and the respondents were given judgment against the appellant for any deficiency.

There is a sharp conflict in the testimony as to the misrepresentations, and the trial court was in the best position to judge the facts.

The first point made by the appellant is that...