Douglas v. Hanbury

• Decision Date: 23 November 1909
• Citation: 104 P. 1110,56 Wash. 63
• Parties: DOUGLAS et al. v. HANBURY et al.
• Court: Washington Supreme Court

104 P. 1110

56 Wash. 63

DOUGLAS et al. v. HANBURY et al.

Supreme Court of Washington

November 23, 1909

Department 1. Appeal from Superior Court, King County; John F. Main Judge.

Action by James E. Douglas and another against William F. Hanbury and another. From a judgment for plaintiffs, defendants appeal. Reversed, with directions to dismiss action.

Averill Beavers, Charles H. Gray, and Geo. McKay, for appellants.

Revelle Revelle & Revelle, for respondents.

RUDKIN C.J.

On the 5th day of May, 1906, the plaintiff James E. Douglas, on behalf of himself and wife, entered into a contract was the defendant William E. Krause for the sale of the real property now in controversy for the consideration of $760 to be paid as follows: Sixty dollars on execution of the contract, and $10 on or before the 5th day of each and every month thereafter, until the full payment of the purchase price with interest on deferred payments at the rate of 8 per cent. per annum. The contract contained this further provision: 'Time is the essence of the contract, and, in case of failure of the said party of the second part to make either of the payments or perform any of the covenants on his part, this contract shall be forfeited and determined at the election of the said party of the first part; and the said party of the second part shall forfeit all payments made by him on this contract, and such payments shall be retained by the said party of the first part in full satisfaction and liquidation of all damages by him sustained; and he shall have the right to reenter and take possession of said land and premises and every part thereof.' On the 8th day of September, 1906, the defendant Krause assigned the contract to the defendant Hanbury. Payments were made on the purchase price under the contract as follows: May 5, 1906, $60; installments for June, July, August, and September, 1906, with accrued interest, paid September 6, 1906; installments for October, November, and December, 1906, with accrued interest, paid December 15, 1906; installments for January, February, and March, 1907, with accrued interest, paid March 20, 1907; installments for April, May, June, and July, 1907, with accrued interest, paid June 27, 1907; installment for August, 1907, with accrued interest, paid August 25, 1907; installments for September, October November, and December, 1907, with accrued interest, paid November 30, 1907. Up to this point there is no conflict in the testimony. The defendant Hanbury testified that he tendered the installments for January and February, 1908, with accrued interest, to the plaintiff James E. Douglas on the 5th day of February, 1908, and that the tender was refused. His testimony was fully corroborated by another witness, but the fact of tender was denied by the plaintiff James E. Douglas. The plaintiffs, on the other hand, testified that they notified the defendant Hanbury by letter on the 26th day of December, 1907, that the January payment would fall due on January 5th next, and that he must be ready with the money. Hanbury denied the receipt of any such letter. The present action was instituted by the vendors to quiet their title as against the contract of sale, and from a judgment in their favor the present appeal is prosecuted.

The rule is firmly established in this state that, where time is made of the essence of a contract of sale, the vendor may declare a forfeiture of the contract for nonpayment of the purchase price or any installment thereof. Drown v Inglis, 3 Wash. St. 424, 28 P. 759; Wilson v. Morrell, 5 Wash. 654, 32 P. 733; Pease v. Baxter, 12 Wash. 567, 41 P. 899; Jennings v. Dexter Horton Co., 43 Wash. 301, 86 P. 576. But the rule is equally well established that the right of forfeiture must be clearly and unequivocally proved, and that the right may be waived by extending the time for payment or by indulgences granted to the purchaser. Whiting v. Doughton, 31 Wash. 327, 71 P. 1026; Morgan v. N.W. Natl. Ins. Co., 42 Wash. 10, 84 P. 412; Insurance Co. v. Wolff, 95 U.S. 326, 24 L.Ed. 387; Insurance Co....