Clarke v. Alstores Realty Corp.
| Decision Date | 28 October 1974 |
| Docket Number | No. 2229--I,2229--I |
| Citation | 11 Wn.App. 942,527 P.2d 698 |
| Parties | C. Joseph CLARKE, Appellant, v. ALSTORES REALTY CORPORATION, a corporation, and Northgate Centers, Inc., a corporation, Respondents, Harry Schuck et al., Defendants. C. Joseph CLARKE, Appellant, v. AURORA TOWING, INC., a Washington corporation, Defendant, Alstores Realty Corporation, a foreign corporation, and Northgate Centers, Inc., a Washington corporation, Respondents. |
| Court | Washington Court of Appeals |
Dore & Dubuar, Albert G. Lirhus, Fred H. Dore, Seattle, for appellant.
Shidler, McBroom, Gates & Baldwin, George W. McBroom, Richard F. Krutch, Seattle, for respondents.
C. Joseph Clarke appeals from an adverse judgment of the trial court in a contract dispute.
On April 15, 1966 Harry Schuck, service manager of Northgate Centers, Inc., a wholly owned subsidiary of Alstores Realty Corporation, sent a memo to Doyle Sims authorizing him to remove peat from certain unimproved real property owned by Northgate. On May 31, 1966 Sims entered into an agreement with C. Joseph Clarke whereby Clarke would remove the peat. The agreement was evidenced by a writing which purported to give Clarke the right (1) of entry for 2 years to remove peat, (2) to stockpile peat on the property and (3) to hold unencumbered title to the peat. Clarke paid Sims $10,500 in return and promised to drain a pond on the property which was a possible source of liability to Northgate.
Clarke engaged an attorney to handle the arrangements. The attorney telephoned Schuck to verify Sims' authority to bind Northgate to the sale and removal of the peat and was assured Sims possessed such authority. He thereafter sent a certified copy of the Sims-Clarke contract to Schuck with a cover letter. The contract price was omitted, but the 2-year removal provision was included. No response was made to the letter, but the record reflects that Schuck discussed the 2-year removal provision with James Douglas, president of Northgate. The record indicates that Douglas instructed Schuck that the 2-year term would be subject to a 6-month cancellation clause. Schuck asserts that he immediately notified Sims of that limitation. Sims denies that the notice was given. It is undisputed that no one notified Clarke, who expended approximately $20,000 of his own funds, plus an additional sum which he borrowed, in furtherance of the contract.
On October 24, 1966 Northgate wrote a letter to Clarke in which it gave Clarke 6-months' notice to vacate the premises and also acknowledged the existence of Clarke's contract for the removal and stockpiling of peat. Clarke treated the notice as a unilateral attempt to modify a written agreement and refused to vacate. Northgate thereafter employed Aurora Towing to physically remove Clarke and his equipment from the premises. At that time Clarke had already removed 1,600 cubic yards of peat and had stockpiled an additional 24,000 cubic yards of peat on the property, pursuant to the contract. Whether Clarke had also drained the pond as required by the contract is disputed.
Clarke brought action for breach of contract, misrepresentation and conversion of the 24,000 cubic yards of peat. Both sides moved for summary judgment. The trial court granted Northgate's motion, but denied Clarke's.
The trial court agreed with Northgate's argument that RCW 64.04.010 () was a defense to the action. The court was persuaded that the sale of peat in place is a sale of an interest in realty. Clarke does not dispute that the written contract upon which he relies was not acknowledged, lacked a full and complete legal description of the parcel and was not executed by Northgate or an authorized agent of Northgate. He argues instead that his partial performance was sufficient to take the contract outside of the statute of frauds and, in any event, the 24,000 cubic yards of peat was personal property to which he had title and therefore his action for conversion of that peat should lie.
Although no Washington case has been brought to our attention which characterizes the sale of peat in place as the sale of an interest in realty, we agree with the trial court's ruling on the point. 1 The peat grew naturally upon the land, unaided by human efforts. At common law, vegetation which grew from perennial roots without the aid of human care and cultivation was regarded as 'fructus naturales,' and, while unsevered from the soil, was considered as pertaining to realty. Severe v. Gooding, 43 Idaho 755, 254 P. 1054 (1927) (); Webb v. Arrington, 249 Md. 46, 238 A.2d 243 (1968) (sod) (Compare Barron v. Edwards, 45 Mich.App. 210, 206 N.W.2d 508, 509--510 (1973) ()); Kirkeby v. Erickson, 90 Minn. 299, 96 N.W. 705--706 (1903) (wild grass); Sparrow v. Pond, 49 Minn. 412, 52 N.W. 36 (1892) (blackberries); In re Chamberlain, 140 N.Y. 390, 35 N.E. 602 (1893) (grass).
RCW 62A.2--107(1) now defines the test for determining the real or personal character of 'timber, minerals or the like' but did not become effective until after the date of the contract now before the court. The common law standard for characterization is therefore controlling. Washington cases, on analogous issues, are consistent with the trial court's ruling. See Coleman v. Layman, 41 Wash.2d 753, 756, 252 P.2d 244 (1953); Elmonte Inv. Co. v. Schafer Bros. Logging Co., 192 Wash. 1, 72 P.2d 311 (1937).
A contract to convey real property must satisfy the requirements of the statute of frauds; whether there was sufficient part performance to take the contract in question outside of the statute, however, is not capable of determination as a matter of law upon the record before us. Both sides agree that Miller v. McCamish, 78 Wash.2d 821, 828, 479 P.2d 919, 923 (1971) controls the issue.
As evidenced by the test required in this state to successfully assert part performance, the court's overriding concern Is precisely directed toward and concerned with a quantum of proof certain enough to remove doubts as to the parties' oral agreement:
The first requirement of the doctrine that part performance of an oral contract exempts it from the provisions of the statute of frauds is that the contract be proven by evidence that is clear and unequivocal and which leaves no doubt as to the terms, character, and existence of the contract. . . .
A mere preponderance of the evidence is not sufficient. If the evidence leaves it at all doubtful as to whether or not a contract was entered into, the court will not decree specific performance.
Another requirement of the doctrine ....
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