Chittick v. Boyle
| Decision Date | 25 November 1970 |
| Docket Number | No. 187,187 |
| Citation | 479 P.2d 142,3 Wn.App. 678 |
| Court | Washington Court of Appeals |
| Parties | Vern CHITTICK and LaVonna Chittick, husband and wife, Appellants, v. William Morgan BOYLE and Julie M. Boyle, husband and wife, and the marital community composed of by them, and Koehler's Inc., a Washington corporation, Respondents. (41292) II. |
Frank B. Carr, Snohomish and Nicolai, Montgomery & Sorrel, Max R. Nicolai, Seattle, for appellants.
Joseph H. Smith, Everett and Storrs B. Clough, Monroe, for respondents.
Vern Chittick, plaintiff herein, is the owner and operator of a tavern business in Sultan, Washington. The business is located in a commercial building owned by defendant, William Morgan Boyle. Chittick's tenancy is governed by a lease, one of whose conditions is
IT IS FURTHER AGREED that if, during the term hereof, the Lessor receives an offer to sell the above described real property before such offer is accepted the Lessee shall be given five (5) days within which to make a valid offer to purchase said real property on the same terms and conditions as those contained in the offer of any such third party.
In January, 1969, when Chittick attempted to pay his regular monthly rent to Boyle, he was advised that the real estate had been sold to defendant Koehler's, Inc., under a contract of sale executed December 10, 1968. Lawrence Koehler, president of Koehler's Inc., is the owner of a sporting goods business located in the same building as the tavern.
Chittick thereupon brought this action seeking (1) to have the contract of sale between Boyle and Koehler's, Inc., declared void; and (2) to compel specific performance by Boyle of the alleged 'option to purchase' contained in the lease.
The trial court denied specific performance and dismissed Chittick's complaint. He has appealed to this court.
The fundamental issue presented by this appeal requires interpretation of the quoted paragraph in the Boyle-Chittick lease. Chittick, the lessee, contends that the paragraph granted him an option to purchase the premises--an option exercisable within five days after receipt of notice of the terms and conditions of any offer the owner may have received. The defendants, Boyle and Koehler's, Inc., having joined in their brief, contend on appeal that the paragraph merely granted Chittick the right to join in the bidding prior to Boyle's acceptance of any offer.
We believe the paragraph most closely resembles a preemptive provision described in 4 Restatement, Property § 413(1) (1944):
A promissory restraint or forfeiture restraint on the alienation of a legal estate in land which is in the form of a provision that the owner of the estate shall not sell the same without first offering to a designated person the opportunity to meet, with reasonable expedition, any offer received, is valid, unless it violates the rule against perpetuities.
It is quite clear, of course, that Chittick was granted the opportunity to meet any offer received by Boyle and subsequently communicated to Chittick. In that sense, Boyle was required to deal with Chittick before he was free to deal finally with others. It is not, however, too readily apparent what privileges Boyle had available to him once he had notified Chittick of receipt of an offer.
Variations in drafting this type of preemptive provision would create variable responsibilities upon the person subject to the provision in dealing with the designated holder of the preemptive right. The real issue, therefore, reduces to a determination of the specific circumstances under which Boyle was privileged to accept the original offer from Koehler's, Inc. Such determination may be resolved from the document itself, or from the expressed intent of the parties, if ascertainable, or both. Superior Portland Cement, Inc. v. Pacific Coast Cement Co., 33 Wash.2d 169, 205 P.2d 597 (1949).
The elementary rule of interpretation requires that we accept a construction of the paragraph in question which gives full force to all the provisions, rather than a construction which will impair the force and effect of any provision. Willenbrock v. Latulippe, 125 Wash. 168, 215 P. 330 (1923). There are two considerations which cause us to give to the paragraph a construction more meaningful than that suggested by defendants.
(1) Chittick's offer, if he makes one, need only be 'on the same terms and conditions as those contained in the offer of any such third party.' Of course, once knowing the specific terms of a third party's offer, Chittick could make any offer he might choose. There must, therefore, be some significance to an offer which merely meets the original offer. The only significance which we can ascribe to the language used is that if his offer is 'on the Same terms and conditions' as the third party's offer, it will have some binding effect. (Italics ours.)
(2) The binding effect of an offer which merely meets the third party's offer is further manifest by the requirement that Chittick's offer be a 'valid' offer. The adjectival limitation upon the offer grants to the owner of the property some discretion to accept or reject the offer--a discretion based upon the validity of the offer...
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