Brooks v. Trustee Co.

• Decision Date: 12 December 1913
• Parties: BROOKS v. TRUSTEE CO.
• Court: Washington Supreme Court

136 P. 1152

76 Wash. 589

BROOKS v. TRUSTEE CO.

Supreme Court of Washington

December 12, 1913

Department 2. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by E. A. Brooks against the Trustee Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions to dismiss.

J. A Stratton and S. J. Wettrick, both of Seattle, for appellant.

P Tworoger, of Seattle, for respondent.

MOUNT J.

On May 24, 1906, the appellant sold to the respondent two half-units. numbered 256 and 257, representing proportional undivided interests in its property No. 4, for the sum of $1,050, and gave the plaintiff the following memorandum: 'Seattle. May 24, 1906. Mrs. E. A. Brooks, City: In consideration of the purchase by you on this date of Inv. Bonds in our property No. 4, to the extent of one thousand fifty dollars (1,050), we hereby agree that after you have consulted your sister or any one else in regard to this investment you desire to withdraw your investment you may at any time return these bonds to our office and withdraw your entire investment with a 6 per cent. earning per annum. The Trustee Co., per Wm. F. Howe, Trust Officer.' The ownership of these units entitled respondent to a proportional share of the earnings of the property which they represented, and on or about June 1, 1906, and continuously thereafter until March 1, 1912, the respondent accepted quarterly her share of the earnings upon these units, aggregating $298.50. This action was begun on September 16, 1912. The complaint alleged the purchase of the units under the above agreement, and that the respondent has since repeatedly tendered the units and demanded the return of the money paid therefor. Judgment was demanded for the amount paid with interest. The appellant interposed a demurrer to the complaint, which was overruled and an exception taken. An answer was then filed admitting the sale of the units under the agreement, but denying that the respondent ever tendered the units or demanded the return of the money paid therefor, except about the time this action was begun. As a first affirmative defense, the appellant alleged that the respondent had elected to retain the units by receiving and accepting the earnings thereon. As a second affirmative defense, the appellant alleges that the respondent's alleged cause of action did not accrue within six years before the commencement of the suit. The allegations of both defenses were denied by the reply. Upon the trial of the cause, the court entered a judgment for the amount of money paid for the units, together with interest thereon at 6 per cent. per annum, less the earnings which the respondent had received as dividends upon the units. This appeal is prosecuted from that judgment.

It is plain, we think, that the contract above set out was a contract to purchase, with the option at any time to return the bonds and withdraw the investment with 6 per cent interest per annum. It is also plain that the words 'at any time' merely gave a reasonable time to the respondent within which to act. The contract, upon its face, was not intended to remain in force forever or to run in perpetuity. In Park v. Whitney, 148 Mass. 278, 19 N.E. 161, where the agreement was, 'I will give you my guaranty to take the meter stock from you at cost, without interest, at any time after January 1, 1886, if at that time you desire to have me do so,' the court said: 'The words 'at that time' mean the same as 'at that date.'...