Druxinman v. Smith

• Citation: 113 Wash. 124,193 P. 224
• Decision Date: 16 November 1920
• Docket Number: 15916.
• Court: United States State Supreme Court of Washington
• Parties: DRUXINMAN v. SMITH et al.

193 P. 224

113 Wash. 124

DRUXINMAN v. SMITH et al.

No. 15916.

Supreme Court of Washington

November 16, 1920

Department 1.

Appeal from Superior Court, Grays Harbor County; Ben Sheeks, Judge.

Action by M. Druxinman against George E. Smith and others. From a judgment for defendants, plaintiff appeals. Affirmed.

F. W Loomis, of Aberdeen, for appellant.

W. N Beal, of Centralia, for respondents.

FULLERTON J.

On November 12, 1917, the respondents, Smith et al., being then the owners of certain real property situated in the city of Aberdeen leased th same to the appellant, Druxinman, for a term of three years. The lease was in writing and contained among others, the following condition:

'It is further covenanted and agreed that this lease is made subject to the right of the lessors to sell and dispose of the said premises and that in case of such a bona fide sale this lease shall be and become at the option of the lessors null and void upon sixty days' written notice given by the lessors to the lessees.'

On November 11, 1918, the respondents entered into a contract with one Mary E. Murray by the terms of which they agreed to sell the property to Mrs. Murray for a consideration of $15,000, of which consideration $1,650 was paid at the time of the execution of the contract, and the balance of such sum was agreed to be paid in monthly installments of $100 each, together with interest on the deferred payments at the rate of 7 per cent. per annum. The contract further provided that the purchaser should pay all taxes and assessments for state, municipal, government, or other purposes which might be levied upon or which might accrue against the premises during the life of the contract, that time was the essence of the contract, that the title to the property should not pass to the purchaser until payment of the purchase price, and that the contract purchaser should have possession of the property.

At the time of the execution of the contract, although seemingly not so required by the terms of the contract, a deed to the property was executed by the grantors and deposited in escrow to be delivered to the contract purchaser on the completion of the payments. On November 15, 1918, the respondent served upon the appellant a notice in writing reciting therein that they had sold the leased property to a bona fide purchaser reciting further that he was required to quit and surrender the premises within 60 days after service of the notice upon him. Pursuant to such notice the appellant surrendered the premises on January 15, 1918, and the contract purchaser immediately took possession of the same, and since that time has maintained possession and has complied with all the terms of the contract. In April, 1918, the appellant began the present action to recover in damages for a breach of the contract of lease. In his complaint he alleged that no sale of the property to a bona fide purchaser had been made, that there had been made no sale at all of the premises, that the purported contract of sale to Mary E. Murray was in fact a lease entered into for the purpose of wrongfully depriving him of rights and privileges accorded him under his own lease, and that a higher rental for the premises might be obtained than the rental therein fixed. It was further alleged that the actual rental value of the premises during...