Drumheller v. Bird
| Decision Date | 17 October 1932 |
| Docket Number | 23606. |
| Citation | 170 Wash. 14,15 P.2d 260 |
| Parties | DRUMHELLER et al. v. BIRD. |
| Court | Washington Supreme Court |
Department 2.
Appeal from Superior Court, Lincoln County; W. M. Nevins, Judge.
Action by J. L. Drumheller and others against S. M. Bird. Decree for plaintiffs, and defendant appeals.
Affirmed.
W. C Losey, of Spokane, for appellant.
Francis A. Garrecht and Reese H. Voorhees, both of Spokane, for respondents.
This is an action in equity brought by respondents to forfeit and declare canceled an executory contract for the sale by them of property described in the contract consisting of a mill at Davenport, Wash., and a number of warehouses with equipment located at different places in Lincoln county, Wash.
Appellant is an operator of flouring mills. In the contract entered into between him and respondents on January 6, 1930 respondents agreed to sell to him all of the real and personal property described in their complaint for the sum of $30,000. It was agreed that $1,574.70 should be paid in cash $500 on March 1, 1930, and $500 on the first day of each and every month thereafter until October 1, 1930, when all the balance was to be paid. In addition to the monthly payments, appellant agreed to pay the sum of $5,000 on April 1, 1930, for the purpose of meeting an installment due upon a bond issue of $50,000, not all of which were due, but were callable at $105. Respondents were liable as guarantors upon the bonds, and it was agreed that certain sums from the payments to be made by appellant should be applied in payment of taxes, interest on the bond issue, trustee's charges, and other incidental expenses. Respondent Denson was designated to receive payments and to apply them on the interest, taxes, and charges according to the terms of the contract. Appellant was in possession of all the property, and made the monthly payment of $500 in March, but fell in arrears on the payment to be made April 1, which payment he made on the last day of the month, at which time he paid $2,475, and on April 14, he paid $3,000, all of which lacked $1,000 of being enough to meet the $5,000 payment due upon the bonds. Respondents Drumheller, Denson, and Woldson then each loaned appellant $335 to make up the $5,000 bond payment. In May, appellant was again unable to meet the $500 monthly payment, and was in default from May 1 until September 16, 1930, at which time he paid $2,500. On September 11, 1930, appellant entered into a contract for the sale of the properties to H. J. Hess & Co. as agents for the Oriental-American Traders' Corporation. On September 16, 1930, appellant paid respondents, from moneys received from H. J. Hess & Co., the sum of $2,500, and on October 28, 1930, H. J. Hess & Co. paid to the credit of appellant $6,400, and an extension agreement was granted by respondents extending the date of payment of the entire balance due on the contract until December 15, 1930. All the belated payments were received by respondents and applied on the contract. A disagreement arose betwen appellant and respondents as to the exact balance due on the contract, appellant claiming he was entitled to certain allowances by reason of the overcharges on insurance and damages for a certain steel tank having been blown down, totaling $1,067.15.
H. J. Hess, as representative of the Oriental-American Traders' Corporation, went to Spokane to take over the properties, and, for the purpose of determining the exact balance due, appellant and respondens entered into a contract in writing on January 5, 1931, a copy of which, with an account stated, is attached to the complaint of respondents, showing a balance of $18,836.66. It was therein agreed that this balance should be payable on January 7, 1931, and, if not then paid, appellant would be in default. This settlement and new promise to pay was entered into without any fraud or compuision. On January 7, 1931, appellant was unable to make the payment agreed upon to respondents, and six days thereafter respondents caused to be prepared and mailed to appellant at Davenport, Wash., in conformity with the original contract, a notice of forfeiture which was received by appellant on January 19, 1931. The material parts of this notice of forfeiture read:
'Mr. S. M. Bird, Davenport, Washington, You are hereby notified that it is our intention to declare forfeited, and that we do hereby declare forfeited and at an end, all your rights under that certain contract * * * and you are further notified if you do not within ten days from and after the receipt by you of this notice, remedy or make good such default by depositing with the American Bank of Spokane, Washington, as escrow agent, the full amount of said balance now due upon said contract, as modified by the supplementary agreement, to-wit: said sum of $18,636.66, all your rights under the said contract will be utterly forfeited and at an end, and we shall keep and retain all of the purchase price heretofore, paid by you as liquidated damages.'
Appellant did not make the payment as demanded and as had been agreed, and on February 5, 1931, after more than the ten days given had elapsed, this action was commenced for the purpose of canceling all rights of appellant in and to the property and forfeiting an liquidated damages all sums paid for and on behalf of appellant under the terms of his contract.
By his answer appellant admitted the allegations in the complaint of respondents of their ownership of the real and personal property; admitted the contract of January 6, 1930; and admitted that the contract was modified by the supplementary agreement dated January 5, 1931, whereby it was agreed that the sum of $18,636.66 was due and payable from appellant to respondents under that contract, and that such sum had not been paid or tendered by appellant.
As an affirmative defense appellant alleged that the terms of the contract had not been complied with by respondents, in that an abstract of title was not furnished as required, and that respondents were required to first discharge the mortgage bonds, which were a lien on all the property in the sum of $50,000, Before he was obligated to make the payment due, and that the notice of forfeiture was waived by negotiations had thereafter with him. He further interposed a counterclaim against respondents alleging damages in the sum of $21,000 for los of profits because respondents unlawfully and maliciously had induced the Oriental-American Traders' Corporation to breach its contract with him under the terms of which he could have made the alleged sum on a resale of the property. In this original counterclaim no allegations or demands were made for the recovery of $15,880 paid upon the contract by appellant, but at the trial of the case, by permission of the trial court, counsel for appellant orally amended the prayer of his counterclaim for the recovery of moneys paid on the contract rather than the damages alleged.
The case was set for trial on June 12, 1931. On June 6, 1931, the attorney who had theretofore represented appellant gave statutory notice of withdrawal as his attorney, and on June 8, 1931, appellant employed his present counsel, who immediately moved for a continuance, setting forth by affidavit the reasons upon which the motion was based. This motion was heard by the trial court on June 9, 1931, and denied, whereupon appellant was required to enter upon the trial of the case on June 12, 1931, over the objection of his counsel.
After the hearing in the trial court, and on July 28, 1931, it rendered an opinion in writing directing a decree in favor of respondents quieting the title of the property described in the complaint in them and forfeiting unto them as liquidated damages all sums paid to appellant on the contract. This appeal results.
Deciding first the matter of the continuance demanded by appellant, although out of the order discussed by counsel, the affidavits in support of the motion gave as a reason for the continuance that appellant desired to take the depositions of certain witnesses in Seattle. The witnesses were not named, nor was the nature of their testimony set forth so as to determine its relevancy. Under these circumstances, it would have been an abuse of discretion for the trial court to have granted the continuance. There is therefore no merit in that contention.
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...Court on the remitter from the State Supreme Court was a mere ministerial act. That decision is not in point here. 4. Drumheller v. Bird, 170 Wash. 14, 15 P.2d 260, 261. In this case it is true that the vendor used the language, "It is our intention to declare forfeited" but they followed t......
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...parties. See annotations to Nicolopoolos v. Hill, 217 Ala. 589, 117 So. 185, 59 A.L.R. 185, at page 194.' See, also, Drumheller v. Bird, 170 Wash. 14, 15 P.2d 260. without deciding, that there was a waiver of time being the essence provision, still the record convinces us there was no resci......
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Barrett v. Bartlett, 26486.
...of Sleeper v. Bragdon, 45 Wash. 562, 88 P. 1036; Kiefer v. Carter Contracting, etc., Co., 59 Wash. 108, 109 P. 332; and Drumheller v. Bird, 170 Wash. 14, 15 P.2d 260. in their answer, pleaded affirmatively their forfeiture of the contract, and asked that this forfeiture be confirmed by decr......
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In re Berry's Estate
...it is not contended that any further notice was necessary to accomplish a forfeiture. Whether or not, under the case of Drumheller v. Bird, 170 Wash. 14, 15 P.2d 260, further notice was necessary need not be decided, and upon that question we express no opinion. In the claim which she filed......