Colpe v. Lindblom

• Decision Date: 26 January 1910
• Parties: COLPE et al. v. LINDBLOM et al.
• Court: Washington Supreme Court

106 P. 634

57 Wash. 106

COLPE et al. v. LINDBLOM et al.

Supreme Court of Washington

January 26, 1910

Department 1. Appeal from Superior Court, King County; Arthur E Griffin, Judge.

Action by Charles H. Colpe and another against Erik O. Lindblom and another. From a judgment for plaintiffs, defendants appeal. Modified and affirmed.

Roberts, Battle, Hulbert & Tennant and C.J France, for appellants.

Edgar C. Snyder and George E. De Steiguer, for respondents.

GOSE J.

On January 31, 1907, the appellants entered into a written contract with the respondents in the words following omitting signatures and acknowledgment: 'Real Estate Contract. San Francisco, January 31, 1907. Received of Herbert V. Perry and Chas. H. Colpe the sum of five thousand ($5,000) dollars as deposit for the purchase by them from us of the Washington Block, situated on First avenue, Seattle, King county, Washington, legally described as follows: The purchase price of said property to be two hundred fifteen thousand ($215,000) dollars, net to us, payable by purchasers as follows: $5,000 deposit money, receipt whereof is hereby acknowledged, thirty thousand ($30,000) dollars cash on delivery by us to purchaser of warranty deed; forty thousand ($40,000) dollars cash on or before one year thereafter, with interest thereon at six per cent. per annum, interest payable semiannually; forty thousand ($40,000) dollars cash on or before two years thereafter at six per cent. per annum, interest payable semiannually; and one hundred thousand ($100,000) dollars by assumption of first mortgage now against said property payable on or about January, 1, 1908, and bearing interest at 5% per annum, payable quarterly. Abstract of title, certified to said purchasers showing good and marketable title in said property and the whole thereof in us, to be delivered to purchasers within ten days after March 28, 1907, and said purchasers shall be allowed fifteen (15) days for examination thereof, wherefor they agree to complete the purchase of said property in accordance herewith, and thereunto pay to us the sum of thirty thousand ($30,000) dollars additional cash and therefor to execute to us a second mortgage of eighty thousand ($80,000) dollars payable as hereinbefore provided for. In case title is not good, or there are any defects of title as shown by said abstract, and said title cannot be made good or said defects of title cannot be cured, then said $5,000 cash paid to us on the signing of this receipt shall be returned to said purchasers and this receipt be canceled. This receipt consists of two (2) pages and this page is the second page thereof. In case title is good and marketable and with no defects and if purchasers shall then fail to close the deal and pay $30,000 cash as herein agreed, then said purchasers will forfeit to us said $5,000 cash and this receipt shall be void and of no effect. Purchasers to receive rents of said property from the date of deed to them and to rebate to us unearned premium of insurance policy. Property to be delivered free of any taxes or assessments or liens to date of deed. Interest to be paid by purchasers from date of deed.'

The abstract of title was delivered to the respondents in due time, any by them submitted to their attorneys for examination. About May 1st the respondents ascertained that the wife of the appellant Dawson was insane, and confined in a sanitarium in the state of California. They thereupon consented that a guardian be appointed for her, in order that her interest in the property might be conveyed. The appellant Dawson at first contended that his interest in the real estate was his separate property. However, on May 25th, he filed in the superior court of King county an authenticated copy of his letters of guardianship, theretofore issued in the superior court of the county of San Francisco, state of California. The respondents' counsel thereupon took the position that it was necessary to have a resident guardian appointed. Thereafter, and on August 13th a petition was filed in the superior court of King county, in which the appellant Dawson united, praying the appointment of a resident guardian. On the same day a show-cause order was entered, fixing October 17th as the day for a hearing on the petition. On November 1st an order was entered appointing a resident guardian. On December 17th appraisers were appointed, and on December 19th an inventory was filed, and the estate appraised. On December 24th a petition for a show-cause order and a sale of the real estate was filed, and on December 26th a show-cause order was made and entered, fixing February 7, 1908, as the date for hearing on the petition. On December 26th the respondents, not having notice of the filing of the last-named petition or the entry of the order thereon, gave the appellants written notice that they elected to rescind the contract which, omitting signatures, is as follows: 'December 26, 1907. To Erik O. Lindblom and Richard B. Dawson, San Francisco, California: You, and each of you, will take notice that, because of your having failed, refused and neglected to perform the contract you made with us on the 31st day of January, 1907, for the sale and transfer to us of the Washington Block on First avenue, in the city of Seattle, Washington, free from all incumbrances, except a certain mortgage specified in said contract, we have elected to rescind and do hereby rescind the said contract and every part thereof; and you will also take notice that, in addition to the sum of five thousand dollars ($5,000.00) paid to you in consideration of the execution of said contract, we have suffered other losses on account of your said breach of contract, in the sum of seven thousand dollars ($7,000.00) and we do hereby demand of you that you forthwith pay to us twelve thousand dollars ($12,000.00)--being the sum of said consideration and said additional loss or damage--together with such legal interest as may be properly chargeable on the various portions of said sum.' On January 17, 1908, the wife of the respondent Dawson was discharged from the sanitarium, and on April 1st the appellants tendered performance. On January 25th this suit was commenced for the recovery of $5,000 paid by the respondents on the contract, terminating in a judgment in their favor. The judgment has been brought here for review by an appeal.

The first error assigned is that under the contract the payment of the purchase price and the execution and delivery of the deed are concurrent acts, and that the respondents, before declaring a rescission were required to tender performance. Admitting this as a general rule, the inquiry is, Is it applicable in this case? It is conceded that the appellants own the property in equal shares; that the respondent Dawson was a married man at the time he acquired the property, and that, at the time of the execution of the contract, and continuously thereafter, until after the respondents gave notice of their election to rescind, his wife, May Dawson, was insane and incapable of doing business. It is well settled in this state that property acquired by either spouse after marriage is presumed to be community property. Assuming, for the present, that the interest of the appellant Dawson in the property was of a community nature, it becomes apparent that a tender of performance would have been a useless thing. The appellants, as the respondents knew, could not then convey a good, marketable title free from defects, as they had engaged to do. '* * * Readiness and willingness to perform on their part would take the place of actual performance, and a formal tender was waived.' Kane v. Borthwick, 50 Wash. 8, 96 P. 516, 18 L. R. A. (N. S.) 486. See, also, Sutthoff v. Maruca et al. (recently decided), 106 P. 632; Hartley v. James, 50 N.Y. 38.

The court found '(5). That upon the plaintiffs ascertaining the defects in the title to said property, they notified defendants thereof, and demanded of the defendants that they perfect their title to said property, in order that they might convey good title to the plaintiffs according to the terms of said contract. (6) That, although the plaintiffs were at all times ready, willing, and able to perform said contract, and had offered so to do, the defendants failed refused, and neglected to perfect their title to said property, and at none of the times mentioned in the complaint, nor at any of the times down to this date, have the defendants had good and marketable title to said property.' The finding that the respondents were ready and willing to perform is abundantly supported by the evidence. Upon discovering the insanity of the wife, about May 1, 1907, they demanded that the appellants proceed with diligence, in order that they might convey a marketable title. Several conference were held between counsel for the respective parties and, tiring of the delay, the respondent Perry went to San Francisco about the middle of December, 1907, to ascertain from the appellants the cause of the delay. He testified that the appellant Dawson finally said to him that he must take such title as the appellants could then convey, and that his wife 'could write as well as he could, even though she were insane'; that she would unite in the deed. It is obvious that the deed of an insane woman would not convey a marketable title. When the respondents ascertained that the wife of one of the parties had been adjudged insane, they could have rescinded at once. While time is not made the essence of the contract, the appellants were bound to convey within a reasonable time. 'If the vendor agrees to convey title at a given time, and has no title when the date for performance...