Clements v. Olsen

• Decision Date: 14 April 1955
• Docket Number: No. 32777,32777
• Court: Washington Supreme Court
• Parties: Charles CLEMENTS, Appellant, v. Raymond OLSEN and Bertha Olsen, husband and wife, Respondents.

Page 445

46 Wn.2d 445

282 P.2d 266

Charles CLEMENTS, Appellant, v. Raymond OLSEN and Bertha Olsen, husband and wife, Respondents.

No. 32777.

Supreme Court of Washington, Department 1.

April 14, 1955.

McMullen, Snider & McMullen, Vancouver, for appellant.

Hall & LaLonde, Simpson & Simpson, Vancouver, for respondents.

SCHWELLENBACH, Justice.

This is an appeal from a judgment dismissing an action for rescission and cancellation of a deed.

In the fall of 1942 Charles Clements, then of the approximate age of sixty-four years, purchased an eighty-acre tract of farm land in Clark county. The purchase price was $5,000, of which the respondents supplied $500. Mrs. Olsen is his niece. The January following the purchase, he persuaded the Olsens to move in with him under some sort of an oral agreement that they would care for him and he would will his property to Mrs. Olsen. He executed the will. After they moved in, appellant and Mr. Olsen built a small house for him on the north forty acres, across the road. He still occupies the small house.

April 24, 1946, he conveyed the eighty acres to the Olsens by warranty deed. The deed contained seven conditions:

'1. That the Grantees will pay before delinquency all state and county taxes which may hereafter be levied or assessed against said real estate.

'2. That the Grantees will keep the buildings located upon said real property insured against loss by fire for their full insurable value, loss, if any, payable to the Grantor. Any sum or sums received by the Grantor under said policy or policies shall be used by him to repair or replace the buildings damaged or destroyed.

'3. That the Grantees will keep all buildings located upon said real property in reasonably good repair, and they shall keep up the fences and farm the said real property in a good and husband-like manner.

'4. That so long as the Grantor continues his residence upon the above described property as hereinafter provided, the Grantees shall furnish him with all food desired by him; but in the event he shall abandon his residence upon said real property for a period of thirty days or more, then the Grantees shall be required to pays to the Grantor only the sum of Twenty-five ($25.00) Dollars per month toward such expense; and will, in the event of sickness on the part of the Grantor, while he continues to live upon said real property, prepare the food for his meals.

'5. That the Grantees will do all necessary washing, ironing and mending of the Grantor's clothing.

'6. That the Grantees will nurse and look after the Grantor in the event of his illness, to the fullest extent of their ability, and will procure for him in the event of extended illness such further medical and nursing care as he may direct.

'7. The Grantor reserves the right to use and occupy the smaller dwelling upon said premises, and which he now occupies, for the rest of his natural life, and the land surrounding the same, but not in excess of five (5) acres; and is to have the unrestricted use of said building and land without any interference from the Grantees.'

The parties got along very nicely until the fall of 1950. They helped each other with their farming and kept the fences in repair. Mrs. Olsen furnished appellant with food, washed, ironed and mended his clothing as she was required to do under the conditions in the deed. They took him to various doctors whenever he so desired. Then a dispute arose as to who should pay for the medicine and doctors' bills. They tried to medicine and doctors' bills. They tried to obstinate. He tore up the will making Mrs. Olsen his beneficiary, and this action was commenced in August, 1951.

After a trial, the court entered findings, conclusions and judgment dismissing the action, and plaintiff appeals.

Assignments of error are directed to those portions of Finding No. 9 that respondents had substantially fulfilled and complied with condition No. 6 of the deed; that appellant had not had an extended illness within the meaning of condition No. 6; and that under the contract he is required to pay for medical and nursing care so long as he is able to do so. Error is also assigned to those portions of Finding No. 8 which deprived him of the right to make a selection of five acres of his choice, and which held that 'land surrounding dwelling' meant land lying north of the county road; in permitting respondents to use the spring north of the county road and lying within the tract selected by him and in refusing to permit appellant to have the unrestricted use, without interference, of five acres surrounding the dwelling occupied by him.

Finding No. 9 stated:

'Plaintiff alleged and claimed a breach of condition number 6 of the deed, but the evidence fails to sustain this claim. The defendants have, since the date of the deed, made substantial effort to care for the plaintiff personally in instances where he needed and requested such care. The defendants at all times, when requested by the plaintiff, took him to see a doctor in Battle Ground. The plaintiff has been required, however, to pay for the services of the doctors that he has seen and for medicines and treatments of various types. Such practice has been customary between the parties, both before and subsequent to the date of the deed. Although the plaintiff has had some illness on occasion, he has not had since the date of the deed an 'extended illness' within the meaning of those words as used in condition number 6 of the deed. The defendants have substantially fulfilled and complied with condition number 6 of the deed.

'The court finds that the meaning of the clause in paragraph number 6 of the deed: '* * * and will procure for him in the event of extended illness such further medical and nursing care as he may direct' is that the defendants will procure and obtain such care in any event, that the plaintiff is required to pay therefor so long as he is able to do so, but that in the event the plaintiff is unable to pay for such care, the defendants are required to pay therefor.'

Appellant does not argue that the court erred in finding that appellant had not had an extended illness. The testimony does not preponderate against that finding. Neither does it preponderate against the finding that respondents had substantially fulfilled and complied with condition No. 6 of the deed. The court was therefore correct in dismissing the action in so far as it sought a rescission and cancellation of the deed.

However, under the pleadings asking for a construction of conditions Nos. 6 and 7, the court was required to interpret the meaning of the word 'procure.' Courts do not have the power, under the guise of interpretation, to rewrite contracts which the parties have deliberately made for themselves. Chaffee v. Chaffee, 19 Wash.2d 607, 145 P.2d 244. In ascertaining the intention of the parties to a written instrument, the courts must look to the wording of the instrument itself as made by the parties, view it as a whole, and consider all of the circumstances surrounding the transaction together with the interpretation of the instrument by the parties themselves as indicated by their subsequent acts. Crystal Recreation, Inc., v. Seattle Association of Credit Men, 34 Wash.2d 553, 209 P.2d 358. The trial court in its oral decision said this:

'Well, some elasticity must be given to these things and not take everybody right at his word, especially if he is an old man like this and has his ideas; that they must try to make up and have a reasonable relationship among themselves. That lies behind the whole agreement. These parties were related and it was expected that they would each be kind and reasonable to the other and this agreement can't go on and fulfill its function unless both parties follow that out in...