Campbell v. Webber, 30040.

• Decision Date: 26 December 1947
• Docket Number: 30040.
• Parties: CAMPBELL et al. v. WEBBER et ux.
• Court: Washington Supreme Court

188 P.2d 130

29 Wn.2d 516

CAMPBELL et al. v. WEBBER et ux.

No. 30040.

Supreme Court of Washington

December 26, 1947

Department 2

Action by Charles H. Campbell and Charles William Campbell against R. C. Webber and La Verne L. Webber, his wife, for specific performance of an agreement to sell realty and personalty consisting of a gasoline station and its equipment, wherein defendants filed a cross-complaint. From a judgment granting specific performance and giving defendants a money judgment plaintiffs appeal, and defendants cross-appeal.

Judgment affirmed.

Appeal from Superior Court, King County; Roger J. Meakim, Judge.

Cowan &amp Haugan, of Reton, for appellants.

Eggerman, Rosling & Williams, of Seattle (Henry E. Kastner, of Seattle, of counsel), for respondents.

ROBINSON Justice.

Action was instituted in this case to enforce specific performance of an agreement to sell real estate and personal property, consisting of a gasoline station and its equipment.

The complaint contains allegations that: Defendants husband and wife owned certain community real property in King county, and also owned several pieces of personal property used in a gasoline filling station. May 14, 1945, defendant R. C. Webber, on behalf of the community, executed an earnest money receipt by the terms of which they were to sell to plaintiffs the real and personal property above mentioned. Mrs. Webber did not sign the agreement, but worked in the office with her husband, took part in the negotiations leading up to the signing of the agreement, prepared memoranda concerning it, aided 'in bringing about the deal,' ratified it, and was estopped from making any claim that the contract was executed without her consent. Defendants refused to comply with the agreement.

In their answer, defendants admitted the ownership of the property referred to in the complaint; admitted the R. C. Webber had signed the contract and had refused to convey their real property.

As an additional answer and cross-complaint, defendants alleged that: The real property was, prior to May 1, 1945, leased, by a verbal contract, to another person who operated thereon a gasoline service station, and that there was an agreement between plaintiffs and defendants that the rent of $25 per month should be paid to defendants. During the month of May, 1945, negotiations were entered into between plaintiffs and defendants wherein plaintiffs agreed to buy the real and personal property for $2500.00 in cash and give back to defendants a lease for a term of five years, with a five-year extension thereon, so that they might operate a gasoline service station on the property.

On or about May 14, 1945, respondent R. C. Webber, relying upon the agreement, executed the contract mentioned in plaintiffs' complaint. Defendant La Verne L. Webber did not execute the agreement, and never consented to its terms or conditions. During the latter part of May, plaintiffs obtained possession of the property from defendants' lessee, and thereafter refused to execute a lease to defendants or to surrender possession of the premises. The reply denied the allegations of the separate answer and cross-complaint.

After trial, the court made its findings of fact and conclusions of law, and entered a decree in favor of defendants. The findings of fact included the following: 'That said earnest money receipt and agreement between the parties was executed only by defendant R. C. Webber and not by his wife. That said wife, however, participated in the negotiations for said sale, discussed the terms of same with plaintiffs, was present during the negotiations between plaintiffs and defendant R. C. Webber, and had full knowledge of the agreement between them. That when plaintiffs and defendant R. C. Webber had finally agreed to the terms of said sale, said defendant wife, in the presence of all of them, stated to defendant R. C. Webber that 'if it is satisfactory to you, it is satisfactory to me.''

The court then entered a decree for specific performance of the contract signed by Mr. Webber, and gave defendants judgment for the sum of $1,048.04. Plaintiffs appealed from the money judgment, and defendants cross-appealed from that part of the decree which provided for a specific performance.

We shall refer to the Campbells as appellants, and to the Webbers as respondents.

Appellants' assignments of error are that the court failed to strike the cross-complaint from the answer permitting the introduction of evidence to support the cross-complaint; further, that it erred in decreeing specific performance and giving damages for the alleged violation of an oral contract; in disallowing a supplemental complaint and in failing to allow appellants damages suffered because of respondents' failure to convey the property.

The assignments of error made by the respondents are that the court erred in holding that Mrs. Webber was estopped from disaffirming the earnest money contract; in holding that respondents must deed the property to appellants; in not finding that appellants agreed, and then failed, to give a lease of the premises to respondents; and in awarding only judgment in the sum of $1,048.04.

The evidence may be summarized as follows: Appellants, who are father and son, reside at Kent; while the respondents live at Puyallup. Mr. Webber is a local distributor for the Associated Gasoline Company. The property, which is located at Kent, consists of premises on which is located an automobile service station dispensing products of the Associated Gasoline Company. At the time of the agreement, the property was in possession of a tenant under a month to month lease. Mrs. Webber worked in her husband's office in Puyallup, doing the stenographic and bookkeeping services.

Appellants, desirous of purchasing a gasoline station, approached respondent R. C. Webber and opened negotiations for the purchase of the premises owned by himself and wife. May 14, 1945, they reached an agreement that the purchase price should be $2700.00. Appellants testified they came to a complete understanding regarding the sale; that respondent R. C. Webber requested continued representation at the station of the products of the Associated Gasoline Company; and that they assured him of such continued representation, but that there was no mention of any lease by them back to respondents or a sub-lease by respondents to appellants. They testified that there was some discussion relative to their marginal profit, and that respondent Webber assured them that, as long as they continued to dispense Associated products, they would receive gasoline at one-half cent per gallon less than the regular tank prices.

Respondents Webber testified that the matter of a lease by appellants back to them was discussed and agreed upon; further, that the lease was to be for a term of five years, with an option in favor of the lessees to extend the lease for a further period of five years, and that as rental the lessees would pay to the lessors one-half cent for each and every gallon of gasoline dispensed at the station. They also testified that they were to execute a sublease back to appellants for a like period of time at a rental of $1 a year.

Both parties, to their detriment, went to the office of a real estate agent where Mr. Webber executed the agreement drawn by the agent. Webber received a check for $100.00, marked 'earnest money.' This check was later deposited by Mrs. Webber in their bank account.

The agreement did not contain any provision that the purchasers would execute a lease of any kind; nor is there any reference therein to any obligation on the part of the purchasers to continue to use the products of the Associated Gasoline Company.

May 29, 1945, appellants obtained possession of the premises from the tenant, notified Webber of the fact, and requested delivery of gasoline. Delivery was made the subsequent day. Thereafter, appellants purchased gasoline from respondents until after this controversy arose and the institution of this suit.

On or about June 12, 1945, respondent Webber presented to appellants a form of lease for their signature, which they refused to sign. A few days later, he tendered back to appellants the earnest money received from them. Webber testified that, when he presented tha lease to appellants, he did not present a sub-lease because that instrument had not as yet been completed.

It appears that appellants purchased a building which they intended to move upon the premises. That was not done, however, because they sold it to other persons.

Mrs. Webber's version of the agreement is indicated by the following quotations from her evidence:

'A. * * * the younger Mr. Campbell said, 'We think you want to do business with us.'

'Q. Whom did he say that to? A. Well, I think he directed his conversation to Mr. Webber because I was working at the counter at the time.

'Q. And what was Mr. Webber's reply? A. Well, I don't remember exactly. He said--just the exact words he used, but he said, 'Well, if we can come to some agreement, if we can come to a price, and you know what arrangements we have discussed,' he said, 'I never, never would consider selling this property without a good firm ground lease. You understand that, Campbells?' And the elder Mr. Campbell said, 'Webber, we had just as soon do business with you as anyone else.' * * *.

'Q. Then finally an agreement was arrived at? A. Yes.

'Q. And that agreement is what, according to your understanding, at the time? A. It was $2,700 plus a firm lease, a 5-year lease with a 5-year option for renewal, and half a cent a gallon rental.

'Q. The half cent per gallon went to whom? A. To the Campbells. * * *

'A. Well, I think it was about that time that Mr.

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