Cavell v. Hughes, 4112-II

• Decision Date: 12 June 1981
• Docket Number: No. 4112-II,4112-II
• Citation: 29 Wn.App. 536,629 P.2d 927
• Parties: Kathleen CAVELL, a single woman, Appellant, v. John W. HUGHES, a single man, Lakeside Country Club, a Washington nonprofit corp., Harold Bringolf and "Jane Doe" Bringolf, husband and wife, Kenneth Platzer and "Jane Doe" Platzer, husband and wife, Stephen Williams and "Jane Doe" Williams, husband and wife, Theodore Johnson and "Jane Doe" Johnson, husband and wife, C. Clarke Montgomery and "Jane Doe" Montgomery, husband and wife,"John Doe" Roberts and Herta Roberts, husband and wife, and Robert Duke and"Jane Doe" Duke, husband and wife, Respondents.
• Court: Washington Court of Appeals

Page 536

29 Wn.App. 536

629 P.2d 927

Kathleen CAVELL, a single woman, Appellant, v. John W. HUGHES, a single man, Lakeside Country Club, a

Washington nonprofit corp., Harold Bringolf and "Jane Doe"

Bringolf, husband and wife, Kenneth Platzer and "Jane Doe"

Platzer, husband and wife, Stephen Williams and "Jane Doe"

Williams, husband and wife, Theodore Johnson and "Jane Doe"

Johnson, husband and wife, C. Clarke Montgomery and "Jane

Doe" Montgomery, husband and wife,"John Doe" Roberts and

Herta Roberts, husband and wife, and Robert Duke and"Jane

Doe" Duke, husband and wife, Respondents.

No. 4112-II.

Court of Appeals of Washington, Division 2.

June 12, 1981.

Thomas L. Fishburne, William T. Lynn, Tacoma, for appellant.

Perry McCormick, Jr., Tacoma, for respondents.

PETRICH, Judge.

Kathleen Cavell appeals from a judgment dismissing her action for specific performance on an earnest money agreement for the sale of defendant's house. The issue on appeal is whether the condition precedent to defendant John Hughes' obligation under the agreement was either excused or waived, thus requiring that he complete the sale. We hold that defendant's actions did excuse the condition, and accordingly reverse.

Mr. Hughes (now deceased) owned a house located in Lakeside Country Club in Pierce County. The club, a nonprofit corporation, owns all the land located within its boundaries and leases to defendant and the other 18 club members the land underlying their respective homes. In addition to the leasehold interest, each house owner is given a membership certificate representing a one-nineteenth ownership of the club's stock.

Under the club's bylaws, no person can become the owner of a member certificate or a leasehold interest without first being elected to membership. On April 10, 1978, Clover Sheean (a club member), acting as agent for her daughter, the plaintiff, executed an earnest money agreement for the purchase of defendant's home. This agreement contained the written condition that:

This offer is subject to the Lakeside Country Club Inc. board of director's approval of Clover V. Sheean's nominee for membership within 45 days of owner's acceptance.

That same day Mrs. Sheean assigned her interest in the earnest money agreement to plaintiff, and nominated plaintiff for membership in the club by submitting an application which she signed on her daughter's behalf.

Defendant approved and signed the earnest money agreement on April 10, 1978. After speaking with other club members, he subsequently became convinced that his asking price for the house had been too low. He consulted an attorney and expressed his desire to terminate the agreement. As a result of this consultation, the attorney returned plaintiff's $500 earnest money check, stating in his letter that defendant was not going to proceed with the sale. The attorney explained that because the club bylaws only permitted one membership per person, Clover Sheean was ineligible to purchase another one and consequently the earnest money agreement that she signed was null and void.

In an attempt to dispel the apparent confusion over who was to be the true purchaser, plaintiff submitted a second membership application, which she personally signed. In addition, her attorney mailed a letter to defendant's attorney explaining that plaintiff was indeed the true purchaser. The letter also contained a statement attempting to waive the condition in the earnest money agreement.

Apparently having not received the second application, the membership committee ¹ voted to recommend rejection of the first application because it had not been personally submitted and signed by plaintiff. The club's board of directors accepted this recommendation and voted not to act on plaintiff's potential membership until there was a "legitimate" application to consider. Defendant, a member of the board of directors, voted with the majority. Because plaintiff's membership was not approved within the 45-day deadline, defendant asserts that his obligation to tender performance under the earnest money agreement never arose.

Plaintiff initiated this action for specific performance and/or damages. The trial court dismissed the action, holding that the express condition precedent (membership approval within 45 days) to defendant's duty to complete the sale had not been excused or fulfilled.

The earnest money agreement required that plaintiff, as Mrs. Sheean's nominee, be approved for membership within 45 days of April 10, 1978, the date that defendant signed the agreement. Plaintiff argues that defendant's interference with her membership approval worked to excuse the express condition precedent (see Ross v. Harding, 64 Wash.2d 231, 391 P.2d 526 (1964)) in the agreement and obligated him to complete the sale of his residence. We agree.

In every contract there is an implied covenant of good...