Cushing v. Heuston

• Decision Date: 04 June 1909
• Citation: 102 P. 29,53 Wash. 379
• Court: Washington Supreme Court
• Parties: CUSHING v. HEUSTON et al.

102 P. 29

53 Wash. 379

CUSHING v. HEUSTON et al.

Supreme Court of Washington

June 4, 1909

Appeal from Superior Court, King County; A. W. Frater, Judge.

Action for specific performance by M. H. Cushing against May N Heuston, individually and as executrix of the will of B. F Heuston, deceased, defendant, and Jessie M. Elliott and others, interveners. From a judgment for interveners plaintiff appeals. Reversed.

Larrabee & Wright and George C. Congdon, for appellant.

Harrison Bostwick, for respondents.

PARKER J.

This is a suit for specific performance, seeking to compel conveyance of certain tide land. The real controversy is between the plaintiff and the interveners, both of whom claim the right to a conveyance from the defendant, who is willing to convey to such persons as the court may direct.

The material facts are as follows: On about March 1, 1905, the intervener Jessie M. Elliott, Mrs. Ellen Fish, and Mrs. Vine Burrington became the owners of lots 18, 19, 20, and 21, and the plaintiff became the owner of lots 24 and 25, all in block 2, Chilberg's addition to West Seattle, all of which lots front upon the tide land involved in this action. The lots were acquired by the respective parties at the same time, by contract with W. W. McGuire, agent of the then owner. At the time of the lot purchase, some conversation took place between these parties and McGuire, which the trial court construed to be a verbal contract by which the parties were to purchase the tide land in front of their lots at $1.25 per front foot, and also by which Cushing was to act as the agent of the other parties in looking after and consummating the purchase of the tide lands by and through McGuire, as agent of the defendants B. F. Heuston and wife, the owners of the tide land. The correctness of the finding of the trial court upon this question is challenged by the plaintiff, which we will notice later and review the evidence upon which it is based. At this time no money was paid upon the proposed tide land purchase by any one, nor was any money furnished Cushing by any one to be paid by him thereon, nor was there any promise by him or agreement by which he was to advance the money necessary to bind or consummate the proposed tide land purchase, nor was there any agreement to pay him for such service. Cushing did not go to the office of McGuire to consummate the tide land purchase, as it is claimed he agreed to do under the alleged agency contract, but some days thereafter, on March 4, 1905, he went to the owners of the tide land, Heuston and wife, at Tacoma, and purchased directly from them, in his own name, all of the tide land in front of lots 18 to 25 inclusive, paying $50 from his own funds upon the purchase price, which purchase was then evidenced by the following writing: 'March 4, 1905. Received of M. H. Cushing $50, part payment for tide lands in front of lots 18 to 25, inclusive, block 2, Chilberg's addition to West Seattle, King county, Washington, this day sold him for $218.75; balance $168.75 payable on or before one year with interest at 6 per cent. per annum. Special warranty deed on full payment. [Signed] B. F. Heuston.' This was executed by Heuston in behalf of himself and wife, who consented to and ratified it. The court found that Heuston made this sale with the understanding that Cushing was purchasing the land for the benefit of himself and his neighbors, Jessie M. Elliott and others, who were the upland owners. As to the correctness of this finding, and as to what inducements other than the purchase price caused the Heustons to sell to Cushing, we will notice later. The interveners, by assignments and conveyances, made before the commencment of this action, became interested as follows: Gaffner and wife owned lots 18 and 19, Jessie M. Elliott owned lots 20 and 21, and Hoadley and wife owned lots 22 and 23, while Cushing, the plaintiff, owned lots 24 and 25, as originally purchased by him. Thereafter, in November, 1905, the interveners tendered to Cushing such portion of the $50 as had been paid by him to the Heustons upon the tide land claimed by them, which tender was refused. This is the only tender ever made to Cushing. On March 1, 1906, Cushing tendered to the Heustons the remaining principal and interest due upon the tide land contract, and demanded a deed in compliance with its terms, all of which was refused. Thereafter this action was commenced by Cushing, against Heuston and wife, to enforce specific performance of the contract, and thereafter the interveners filed their complaint in intervention, praying that deeds be made to them for the tide land in front of their lots. Thereafter, before trial, the defendant B. F. Heuston died, when his wife, the defendant, became executrix of his last will and testament. No effort was made at the trial, by Hoadley and wife, to establish their claims, which were treated as abandoned. The trial court disposed of the cause by decreeing that the defendant May N. Heuston, individually and as executrix, upon payment to her of the balance of the purchase price, should deed the tide land as follows: To the interveners Gaffner and wife, the tide land in front of their lots 18 and 19; to the intervener Jessie M. Elliott, the tide land in front of her lots 20 and 21; and to the plaintiff Cushing, the tide land in front of his and Hoadley's lots 22, 23, 24, and 25. Thereupon the plaintiff appealed to this court, where he now contends that he is entitled to have all the tide land deeded to him by defendant, upon his paying the balance of the purchase price as agreed in the contract of purchase. The decree was rendered in favor of the interveners Elliott and Gaffners, as to the tide land in front of their lots, and it is now sought to be supported, upon the theory that the purchase of the tide land by Cushing in his own name, in view of his relation to and agreement with the interveners and defendants, raised a constructive trust in favor of the interveners.

In order to correctly apply the doctrine of equity relating to such trusts, in the determination of this question, we find it necessary to go beyond the findings of the trial court, touching the relations of Jessie M. Elliott and her associates with Cushing, and the inducement which led the Heustons to sell to Cushing, and look into the evidence, to the end that we may see the real relation of the parties to each other more in detail and with greater certainty than is expressed in the findings of the trial court, which are general in their nature, and to the effect that Cushing was acting as agent for the others, and that he induced the Heustons to sell to him by fraudulent representations. It appears from the evidence that, until the time of the purchase of the lots, about March 1, 1905, Jessie M. Elliott and her associates had never met the plaintiff, Cushing, being then entire strangers to him. Their coming together there resulted evidently in a common desire to purchase lots in the addition, and all being in conversation with Mr. McGuire, the agent, and the purchase of their respective lots being consummated, then occurred all of the conversation which the trial court construed as an agency agreement on the part of Cushing to purchase the tide land for himself and the other lot owners.

As to this alleged agreement, Jessie M. Elliott was the principal witness, and testified as follows: 'A. Mr. McGuire assured us we could have the tide lands abutting our upland. Q. What was said at that time, if anything, Mrs. Elliott, when you purchased these lands of Mr. McGuire--the uplands--regarding the tide lands? A. Why, Mr. McGuire, Mrs. Burrington, and myself were standing there together, and others, and Mr. Cushing at his own proposal--his own suggestion--suggested that he attend to the tide lands for the ladies. There were only three ladies that bought tide lands with him, adjoining him, and we agreed to it, and he was to go to McGuire's office the next morning and secure these tide lands for us, instead of our going and bothering about it. Q. You relied upon that? A. We relied upon it assuredly. We fully understood it that he was to purchase these tide lands for us jointly. Q. Did you know at that time what you were to purchase them for? A. Yes, sir; for a dollar and a quarter a front foot. Q. Who offered them for a dollar and a quarter? A. Mr. McGuire offered us. He told us at the time that they could be bought of Mr. Heuston in Tacoma. * * * Q. Why didn't you buy your tide lands of Mr. McGuire? A. Well, simply because Mr. Cushing offered to attend to this for us. We were very glad to have some one to attend to it for us, and we all agreed by answering we would be very glad to have him attend to it.'

Mr. McGuire, the agent, corroborates Mrs. Elliott in a very general way, giving but few of the details of the conversation touching Cushing's agency. He says: 'They said they wanted the tide land if they took the upland lots, and I assured them they could have the tide lands. So they finally delegated Mr. Cushing to see me the next morning at 10 o'clock at my office and arrange for the purchase of the tide lands. Mrs. Elliott did the talking. After talking to the other ladies, and asking them if it was satisfactory for Mr. Cushing to attend to it for them. * * * They were to buy them on contract, so much down, and the balance in a year. * * * Mrs. Elliott says: 'I am very busy, and you go attend to it without all of us being there.''

Touching this conversation and the alleged agreement, Mr. Cushing, the plaintiff, testifies: 'Q. Was there ever such an agreement entered into, Mr. Cushing? A. None whatever. Q. Now, Mr. Cushing, were you authorized--were you delegated as the agent of Mrs. Fish and Mrs. Burrington and Mrs Elliott--to...