Brown Bros. Lumber Co. v. Preston Mill Co.

• Decision Date: 26 January 1915
• Docket Number: 12168.
• Citation: 83 Wash. 648,145 P. 964
• Parties: BROWN BROS. LUMBER CO. v. PRESTON MILL CO.
• Court: Washington Supreme Court

145 P. 964

83 Wash. 648

BROWN BROS. LUMBER CO. v. PRESTON MILL CO.

No. 12168.

Supreme Court of Washington

January 26, 1915

Department 1. Appeal from Superior Court, King County; Everett Smith Judge.

Action by the Brown Bros. Lumber Company against the Preston Mill Company to quiet title, in which defendant asked for specific performance of a contract for the purchase of the land. Decree for defendant, and plaintiff appeals. Reversed, with directions to enter decree for plaintiff.

Alexander & Bundy, of Seattle, for appellant.

Corwin S. Shank and H. C. Belt, both of Seattle, for respondent.

CHADWICK J.

The plaintiff, a Wisconsin corporation, commenced this action to quiet title. The defendant answered, alleging facts which it thought entitled it to specific performance and prayed for that relief. The court entered a decree granting the relief asked by the defendant. Plaintiff has appealed.

The admitted facts are these: On the 21st day of August, 1911 Charles J. Erickson and August Lovegren, with their wives, were the owners of certain land in Mason county. Erickson was the president of the respondent corporation. At the same time the appellant owned certain timber and easements for its removal from the land in King county situated near the respondent's plant, upon which it owed the sum of $4,750 to the owners of the land on which the timber stood. The appellant was also under obligation to pay the taxes assessed against the land and timber until 1920. One R. D. Brown, who resided in Seattle, was its local agent. On August 18, 1911, Brown wired the appellant: 'Preston offers eighteen, eight cash, balance five per year. Answer'--meaning that the respondent offered to pay $18,000 for the King county timber, $8,000 cash, balance $5,000 per year. The offer also included, although not expressed in the telegram, the Mason county land then owned by Erickson and Lovegren. On the same day the appellant wired Brown: 'Accept Preston offer, eight cash, balance five per year. Will forward papers'--and wrote Brown a letter confirming its telegram, and inclosing an abstract of the King county land, duplicate originals of contract for a deed to the respondent of the timber both of which it had executed, two notes for the signature of the respondent, and duplicate originals of deed to the respondent, one of which it had executed and acknowledged. It advised Brown:

'We also think it necessary that we should have an indemnity bond * * * for at least $5,000' to secure the payments to become due to the owner of the land. 'If papers are O. K. please turn over to Preston Mill Company one copy of the contract for deed which is executed, and one copy of the deed itself which is not executed. All other papers to be returned to us.'

By the terms of the contract the appellant agreed to sell the timber and easements to the respondent for $18,000, $8,000 cash, $5,000 payable in one year, and $5,000 payable in two years, the deferred payments to bear interest at the rate of 7 per cent. per annum interest, payable annually, and to be evidenced by two promissory notes to be signed by the respondent, payable to the order of the appellant at the Merchants' State Bank of Rhinelander, Wis. The contract further provided that the respondent should pay all taxes levied against the land and timber, beginning with the year 1911, and make all payments to become due from the appellant to the owner of the land, aggregating about $4,750.

The appellant's agent, Brown, testified that on or about September 1st he delivered to Erickson, as the president of the respondent, for examination, one copy of the contract which had been executed by the appellant, and a copy of the deed, two promissory notes for the signature of the respondent, and the appellant's letter of instructions of date August 21st. He further testified that on the 24th day of August he learned that Lovegren had an interest in the Mason county land. He said Erickson said that it might take a month to get title from Lovegren, and that he told Erickson the appellant was 'very anxious' to have the deal closed as soon as possible, and that 'I did not think the negotiations ought to go over a month.' On September 7th the appellant wrote Brown, inquiring, 'How about the Preston Mill Company deal? Is it going through this time or are they refusing to close?' On September 21st it again wrote Brown: 'What, if any, information can you give us regarding the Preston Mill Company deal? Did they refuse to close?' On September 24th Brown wrote the appellant that he had received and forwarded the abstract of the Mason county land to have it brought to date, saying, in addition: 'This Preston deal has been dragging in bad shape.' On October 12th Brown wrote the appellant that Erickson had not bought Lovegren's interest in the Mason county timber; that, in order to close the trade, the respondent would have to pay Lovegren $7,000 therefor; that he had had the abstract examined, and found the title good; and that he had 'been pushing them to come to some settlement.' He further advised that Erickson had made him an offer that morning of $28,000 cash for the timber. On October 17th the appellant wrote Brown acknowledging his letter of the 12th inst., and directing him to have the King county timber cruised. On October 20th it again wrote Brown, to the effect that it was awaiting 'with considerable interest' the result of the cruise on the King county timber. On November 3d Brown wrote the appellant:

'Erickson was in again to-day, saying he had a definite answer from Lovegren to-day saying he would neither buy nor sell the Mason county lands. He says that he is going down to Oregon Monday to thresh it out with him. This means a long delay and possibly legal difficulties before this deal goes through. In the meantime I expect to have the boys' cruise on it by the first of this next week.'

On November 13th Brown wrote the appellant, inclosing a summary of the cruise of the King county timber, stating that it ran over 100 per cent. higher than he had estimated, and that:

'Friday afternoon [about November 10th] Mr. Erickson was in and stated that the deed was on the way to Lovegren's wife to sign; that we ought to be able to close up this week.'

He further advised in this letter that he intended to inform Erickson that if the deal was not closed by the 20th he would decline to close it at all. His testimony shows that on that date he left a note to that effect in Erickson's office, and that he advised him to the same effect verbally the next day. On November 17th the appellant wired Brown:

'Estimate received. Withdraw Preston timber from market until further advice.'

On November 18th the appellant wrote Brown, confirming its telegram of the 17th. It further advised him:

'Should the deal be closed before receiving this telegram, we of course would have to stand pat on the proposition.'

On December 13th the respondent, through Erickson, its president, tendered the appellant $8,000 in gold coin, two promissory notes executed by the respondent conformably to the contract, and a deed from Erickson and wife to the Mason county timber, and demanded that the appellant comply with the terms of the contract upon its part. Upon the same day it signed the duplicate contract and filed it for record in King county.

Mr Erickson admitted upon the witness stand that Brown had notified him, on or about the 14th of November, that the deal had to be closed by November 20th. He says he did not remember the precise date, but that it may have been about November 14th. It appears that, about the 10th of November, Erickson received a deed from Lovegren, but that it had not...