Darst v. Meduna
| Citation | 130 P.2d 361,15 Wn.2d 293 |
| Decision Date | 30 October 1942 |
| Docket Number | 28718. |
| Parties | DARST v. MEDUNA et ux. |
| Court | United States State Supreme Court of Washington |
Department 2.
Action by D. J. Darst, as assignee under a common-law assignment of the assets of Metal Bonding, Incorporated, an insolvent corporation, against John F. Meduna and his wife to recover a balance due under a conditional sales contract between plaintiff's assignor and named defendant, wherein defendants set up an affirmative defense. Judgment for plaintiff, and defendants appeal.
Affirmed.
Appeal from Superior Court, King County; James T. Lawler, judge.
Rummens & Griffin, of Seattle, for appellants.
Elliott & Kells, of Seattle, for respondent.
As assignee of Metal Bonding, Inc., plaintiff brought this action to recover the balance due under a conditional sales contract between his assignor and defendant John F. Meduna. The defendants set up an affirmative defense of fraud alleging damages on that account in excess of the balance due on the contract. The court specifically found that there was no fraud perpetrated by plaintiff's assignor. It found that the defendants were in default for payment due under the contract in the amount of $467.84, and entered judgment accordingly. Defendants appeal.
We shall not discuss the evidence with respect to the issue of fraud. Suffice it to say that we are in complete accord with the court's finding on that issue.
The subject matter of the contract is specifically described as follows:
The contract was executed March 4, 1940. The vendee took immediate possession of the personal property and has retained it ever since. The contract provides:
'The purchase price of said property, exclusive of interest, is the sum of One thousand eight hundred Dollars ($1,800.00), which shall be paid as follows, with interest on unpaid balances at the rate of five per cent. (5%) per annum beginning April 1, 1940:
'One hundred Dollars ($100.00) per month, plus interest, for eight (8) months beginning April 1, 1940, and ending November 1, 1940.
'The remaining One thousand Dollars ($1,000.00) shall be paid by the Vendee's paying to Vendor ten per cent. (10%) of the gross income of the metal bonding business carried on by the Vendee, but in no event are said payments to be less than the sum of Twenty-five Dollars ($25.00) per month plus interest: * * *.'
It is also provided that, upon full payment of the purchase price, the name 'Metal Bonding, Inc.,' shall become the property of the vendee; that, during the life of the contract, the vendor will cooperate in every reasonable way with the vendee--supplying 'customer files and records,' and referring to the vendee 'all phone calls and other inquiries regarding the metal bonding business, and [the vendor] will encourage its customers to contact the Vendee for all metal bonding work'; that the vendor shall not engage in the metal bonding business in any of the Pacific Coast states 'from this date henceforth.'
Appellants assign error in that the court required them to perform the contract 'irrespective of the fact that the Vendor was insolvent and made an assignment for the benefit of creditors following execution of the contract and could not itself perform.' The argument in support of this assignment is that the vendor, by going out of business, disconnecting its telephone and discontinuing the use of the name 'Metal Bonding, Inc.,' placed itself in a position where it could not 'cooperate in every reasonable way'; could not 'transfer * * * the business and customers'; could not 'refer to Vendee phone calls and other inquiries'; and could not 'encourage its customers to contact' the vendee for 'all metal bonding work.'
It is urged that all this amounted to a breach of warranty under Rem.Rev.Stat. § 5836-69. In the absence of supporting authority, we are not...
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Wilkinson v. Sample
...to a rescission of that part of the contract. Such a course has been approved by the Washington Supreme Court. In Darst v. Meduna, 15 Wash.2d 293, 296, 130 P.2d 361 (1942), the court It is, of course, well settled that, when the subject of a contract of sale consists of several different ar......
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Mell v. Winslow, 33625
...sold for a gross sum, and the purchase price is not apportioned to the individual articles, the contract is entire. Darst v. Meduna, 1942, 15 Wash.2d 293, 296, 130 P.2d 361. Where the condition precedent has not been performed as to one item of an indivisible contract, the consideration fai......
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Bariel v. Tuinstra
...trial court erred in concluding that the land and personal property contracts constituted one indivisible contract. In Darst v. Meduna, 15 Wash.2d 293, 130 P.2d 361, 362, we set out the law relative to severable or entire contracts in this '* * * It is, of course, well settled that, when th......
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W. L. Reid Co. v. M-B Contracting Co.
...purchase price is not apportioned to the different articles, the contract is entire and the price cannot be divided. Darst v. Meduna, 1942, 15 Wash.2d 293, 130 P.2d 361. See, also, Bariel v. Tuinstra, Wash.1954, 276 P.2d Therefore, the cancellation of the order for metal covering rescinded ......