Drown v. Ingels

• Decision Date: 06 January 1892
• Parties: DROWN v. INGELS ET AL.[1]
• Court: Washington Supreme Court

28 P. 759

3 Wash. 424

DROWN v. INGELS ET AL.^[1]

Supreme Court of Washington

January 6, 1892

Appeal from superior court, King county; I. J. LICHTENBERG, Judge.

Action by Annie L. Drown against Lauron Ingels and others. Judgment for defendants. Plaintiff appeals. Affirmed.

Wiley, Hale & Scott and Thompson, Edsen &amp Humphries for appellant.

J C. Haines, (L. B. Stedman, of counsel,) for respondents.

HOYT J.

This action was brought to secure the specific performance of a certain contract for the sale of real estate made by said Lauron Ingels to said Annie L. Drown. Time was made the essence of said contract, by the use of language substantially as follows: "As time was and is made the essence of the contract of sale of said lot, the failure to make any payment thereon as the same becomes due shall work an absolute forfeiture of all payments made on said contract, and shall release the vendor from all obligation to convey said property under said contract." A present payment of $100 was made, and two deferred payments, each of $150, were provided for in said contract. On the day that the first of such deferred payments became due the plaintiff stated to defendant Lauron Ingels that she was unable to meet the same at that time, and such negotiations were had between the parties that it was agreed that, if the sum of $200 was paid by noon of the following Saturday, it would be accepted in full payment of the amount due and to become due on said contract, and that, upon such payment being made at that time, a deed would be executed to said plaintiff. The money was not paid or tendered to the defendant at the time named, whereupon, on the Monday or Tuesday following, the defendants Lauron Ingels and Lydia E Ingels, his wife, duly conveyed the property to the defendant C. C. Calkins, who, as such purchaser, was made a party defendant in the action. It is not claimed on the part of the plaintiff that any tender of the amount agreed upon to be paid was made until some days after such conveyance to defendant Calkins, but it is contended that under the proofs the court should have found that the plaintiff made a bona fide effort to make the payment on the Saturday named, at the time and place where she understood it was stipulated to be paid, but that defendant Ingels was not there to receive payment as stipulated. On the other hand the proof introduced on the part of defendants tended to show that said Ingels was present at the place where payment was to be made, as he understood it, not only at the hour on said day at which it was agreed such payment should be made, but during nearly the entire day. The testimony in regard to the place of payment as understood by the parties to the contract was conflicting. Defendant Ingels insisted that the place of payment was his office in the Eshelman-Llewellyn building, and the plaintiff insisted that it was in the Morning Journal office, in the same building. If there was a bona fide mistake on the part of plaintiff as to the place of payment, and she was ready to make payment where she understood it should be made, at the time agreed upon, we are of the opinion that her rights could not be forfeited by reason of such mistake. But the court below must have found that not only was the place of payment the office of said Ingels, as testified by him, but that, from the nature of the conversation, and the place where it occurred, at the time payment was extended until said Saturday, it was impossible that plaintiff...