Colby v. Interlaken Land Co.

• Decision Date: 17 November 1915
• Docket Number: 12613.
• Court: Washington Supreme Court
• Parties: COLBY v. INTERLAKEN LAND CO.

152 P. 994

88 Wash. 196

COLBY v. INTERLAKEN LAND CO.

No. 12613.

Supreme Court of Washington, En Banc.

November 17, 1915

Appeal from Superior Court, King County; Everett Smith, Judge.

Action by W. R. Colby, Jr., against the Interlaken Land Company. Judgment for plaintiff, and defendant appeals. Dismissed.

Morris C.J., and Parker, Fullerton, and Main, JJ., dissenting in part.

Adair Rembert, of Seattle, for appellant.

Saunders & Nelson and E. P. Whiting, all of Seattle, for respondent.

MOUNT J.

The plaintiff brought this action to recover the cost of the pavement upon Crescent Drive in the city of Seattle, in front of three lots owned by him. The action is based upon a written contract. Upon issues joined the case was tried to the court without a jury. At the conclusion of the case, the trial court found in favor of the plaintiff, and entered a judgment against the defendant for the cost of the pavement. The defendant has appealed from that judgment.

It appears that on the 1st day of December, 1908, the plaintiff and the defendant entered into a contract, whereby the plaintiff agreed to purchase from the defendant the three lots mentioned, for the agreed price of $7,275. This contract, among other things, provided that the respondent should build upon the property a house costing not less than $5,000. The contract then provided as follows:

'And it is further agreed that party of the second part [plaintiff] shall submit to first party [defendant] plans for a building to be erected upon lot twenty-five within thirty days from the delivery of said deeds; that the plans for said residence shall be subject to approval of party of the first part; that said building shall be contracted for and the contract let within two weeks after the approval of the plans by first party; that construction of said building shall be commenced within two weeks after the contract has been let that the building shall be roofed within two months after the commencement of such constructions, and that the house shall be completed on or before June 1, 1909, said completion to be evidenced by a certificate from S. A. Jennings, architect and the performance of all the conditions herein, in this paragraph contained, are to be fully made by said second party, and the sum of seven hundred and twenty dollars is hereby agreed upon as liquidated damages for the breach of this covenant; provided, however, that such liquidated damages shall not be claimed and demanded by first party, and the same shall not become due except upon five days' written notice, served personally or by leaving at the office of Bude & Miller, 425 New York Block of such failure to complete said building and demand that the same be completed within five days thereafter. It is agreed that in case of fire, act of God, or public enemy, in the course of construction of said building, the time for the performance of this covenant shall be extended such time as may be reasonably required to repair the damage caused thereby.'

'Sewer and water on the street in front of the property above described are to be furnished when required by the purchaser, and all assessments for local improvements, heretofore returned against said property, and for grade, water mains and sewer and sidewalks, whether now a lien on said property or not, shall be paid by first party, and if all the covenants and agreements by the said second party to be kept and performed, contained herein, shall be well and truly kept and performed the party of the first part shall cause the street in front of said property to be paved, on or before the ___ day of _____ with _____, to be approved by the city engineer of the city of Seattle, at their own proper costs and expense, and will within one year after the same shall have become a lien against said property, pay all assessments in full, which may, or might, become a lien against said above-described property, for and on account of the first paving of Crescent Drive in said Interlaken, and will hold and save harmless second party from any and all liens and claims arising or to arise for and on account of such paving; and in the event first party shall fail to pay said assessments, or any of them, within one year after the same become a lien against said property, provided first party shall have been served with five days' notice in writing to pay the same, then second party may pay any or all such assessment, and thereupon recover the same from first party, together with such necessary costs, disbursements and attorney's fees as may be by him expended or incurred.'

Thereafter plans and specifications for a house to cost about $10,000 were submitted to the defendant by the plaintiff. These plans were approved by the defendant, and a house was constructed according to these plans.

It is claimed by the plaintiff that the time for the completion of the building was extended for a period of 30 days. The defendant conceded that an extension of three weeks was granted, but denied that an extension was given to July 1, 1909. The principal issue in the case was whether the house was completed within the time provided for in the contract. It is conceded that the completion was not evidenced by the certificate of Mr. Jennings, who was the architect for the plaintiff in the construction of the building. On the 26th day of July, 1909, the defendant gave notice to the plaintiff that the mortgage referred to in the contract was due and payable, by reason of the nonperformance of the conditions contained in the agreement. Thereafter the street in front of the property was paved by the city, and an assessment levied against the property amounting, with interest, to $1,062.31. The defendant argues that before it is liable for the street paving, it was necessary for the plaintiff to show that the house was completed, and to obtain from the architect a certificate...