Blakely v. Sumner

• Decision Date: 14 February 1911
• Citation: 62 Wash. 206,113 P. 257
• Court: Washington Supreme Court
• Parties: BLAKELY et ux. v. SUMNER et ux.

113 P. 257

62 Wash. 206

BLAKELY et ux. v. SUMNER et ux.

Supreme Court of Washington

February 14, 1911

Department 2. Appeal from Superior Court, King County; A. W. Frater Judge.

Action by W. M. Blakely and wife against S. H. Summer and wife. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

Skeel & Whitney, for appellants.

H. H Benton and Will H. Thompson, for respondents.

MORRIS J.

Appellants brought the action, asserting ownership of an undivided three-fifths interest in the land in controversy, and that they were entitled to the possession thereof, which possession was adversely claimed by respondents without right or title. Respondents answered, asserting their right to possession under an oral contract of sale, and prayed for a specific performance. Upon the issues thus framed, trial was had and judgment entered as prayed for by respondents, from which this appeal is taken.

It is not denied that in June, 1906, the parties entered into negotiations relative to the sale and purchase of the land. The differ somewhat as to the nature and extent of these negotiations; appellants contending that respondents sought to purchase the lands, and were informed by appellants that they only had an undivided one-half interest in the land at that time, that they would endeavor to obtain the remaining interest, and, if so, would sell to respondents at a price to be agreed upon, while respondents contend that appellants agreed to sell the land for $1,200 cash, claiming the entire title, but asserting a cloud which they would remove, and then convey. Whatever the contract was, respondents paid appellants $100 upon the purchase price, and appellants subsequently increased their title from an undivided one-half to an undivided three-fifths interest. Respondents sought to obtain this interest, and made a tender of the balance due. Appellants refused the tender, and in March, 1908, wrote respondents that they were unable to procure the remaining interest, and returned the $100 with $20 interest added. Upon the receipt of this letter, respondents, on April 14, 1908, wrote appellants, saying: 'This is a great disappointment to me. * * * I still believe that you would have gone ahead if you had been able to secure title from those people. I want this piece of property and I want you to give me a deed to your undivided interest, and I will negotiate with the other owners for their interest. Write me at once, please, what you think I ought to pay for your interest and forward deed to bank for collection. I think this is a fair proposition and, under the circumstances, one which you ought to accede to without delay.' About a week after writing this letter, respondents, through an attorney again wrote appellants, returning the $120, and insisting upon a deed from appellants for the three-fifths interest at the price claimed to have been originally agreed upon, to which appellants responded declining to negotiate further respecting the property. Accepting the finding of the lower court that the contract was as contended for by respondents we cannot read respondents' letter of April 14th other than as an acquiescence in appellants' inability to carry out the original agreement, and the commencement of new negotiations for a less interest, upon terms to be fixed by appellants. This, it seems to us, was a waiver of any claim of right under the first contract, and prevents respondents from now seeking its enforcement.

There is, however, another question presented to us by this record that demands a reversal of the judgment. Whatever the contract was, it was admittedly an oral one and as such under the universal ruling of all courts is not enforceable, it being an oral contract for the sale of land, unless it falls within some recognized exception to such rule. Respondents admit such to be the rule applicable here, and contend that the case is without the statute of frauds because respondents were in possession, The facts upon which the claim of possession is based and upon which the court below decreed a specific performance are these: The land in question consists of a two-acre unimproved piece on the outskirts of Seattle. Some time in 1906, respondents stated to several persons that they owned the land and claimed possession. In 1908 the Seattle Electric Company cut some brush and small timber on the land, with the consent of respondents. Some time prior to 1908, respondents permitted a neighbor to cut some wood on the land. In the fall of 1908, a man named Wagner built a small stable on the land with respondents' knowledge and consent; it also appearing in this connection that Wagner had a written license or permission from appellants,...