Dubke v. Kassa, 30234.
| Decision Date | 19 December 1947 |
| Docket Number | 30234. |
| Citation | 29 Wn.2d 486,187 P.2d 611 |
| Parties | DUBKE v. KASSA et ux. |
| Court | Washington Supreme Court |
Department 2
Action by A. H. Dubke against Thomas Kassa and wife to recover down payment made by plaintiff on purchase price of realty. From a judgment for plaintiff, defendants appeal.
Judgment reversed with direction to enter judgment of dismissal.
Appeal from Superior Court, Spokane County; Louis F. Bunge, judge.
Tustin Chandler & Tustin and Clyde H. Belknap, all of Spokane, for appellants.
O. C Moore and W. R. Sampson, both of Spokane, for respondent.
A. H Dubke, the respondent, orally agreed to purchase the home of Mr. and Mrs. Thomas Kassa, the appellants, for $4,400.00, and made a payment of $250.00. The transaction was evidenced by just one piece of writing, a receipt which read as follows:
Thereafter respondent refused to purchase the property, and the appellants were at all times prior to the commencement of this action ready, willing, and able to complete the sale. This action was commenced to recover the $250.00 payment. Thereafter, the appellants sold the property to a third party.
The applicable rule is that a vandee under an agreement for the sale and purchase of property which does not satisfy the statute of frauds, Rem.Rev.Stat. § 5824 et seq., cannot recover payments made upon the purchase price if the vendor has not repudiated the contract but is ready, willing, and able to perform in accordance therewith, even though the contract is not enforcible against the vendee either at law or in equity: 49 Am.Jur. 870, § 564; 37 C.J.S., Frauds, Statute of, § 256; 2 Restatement of the Law of Contracts 614, § 355; Johnson v. Puget Mill Co., 28 Wash. 515, 68 P. 867 (dicta).
The trial court in this case permitted the vendee to recover the $250.00, because it believed that our decision in Stanek v. Peterson, 26 Wash.2d 385, 174 P.2d 308, made it obligatory so to do. In that case, the vendees did recover the amount paid, but in the concluding paragraph of the opinion it is stated that it was conceded that the vendees could at any time ask for and receive the return of the payment. It is for that reason not an authority for any holding contrary to the rule we have earlier in this opinion declared to be applicable.
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Kofmehl v. Baseline Lake, LLC
...either at law or in equity.’ ” Schweiter v. Halsey, 57 Wash.2d 707, 711, 359 P.2d 821 (1961) (quoting Dubke v. Kassa, 29 Wash.2d 486, 487, 187 P.2d 611 (1947)). Washington courts have “consistently denied” recovery of earnest money paid under such circumstances, “in accord with the great we......
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Kofmehl v. Baseline Lake, LLC
...against the vendee either at law or in equity.”Schweiter, 57 Wash.2d at 711, 359 P.2d 821 (quoting Dubke v. Kassa, 29 Wash.2d 486, 487, 187 P.2d 611 (1947)). ¶ 16 Pointing to this court's decision in Johnson v. Puget Mill Co., 28 Wash. 515, 68 P. 867 (1902), the Court of [177 Wash.2d 593]Ap......
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Home Realty Lynnwood, Inc. v. Walsh
...as agreed." 18 STOEBUCK & WEAVER, supra, at 250 (citing Schweiter v. Halsey, 57 Wash.2d 707, 359 P.2d 821 (1961) and Dubke v. Kassa, 29 Wash.2d 486, 187 P.2d 611 (1947)). This is the general rule followed by a great majority of other jurisdictions. See 169 A.L.R. 187 (2008). The rationale i......
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Schweiter v. Halsey
...property until after respondents commenced this action. Under these facts, the case falls directly within the rule of Dubke v. Kassa, 1947, 29 Wash.2d 486, 187 P.2d 611, wherein we 'The applicable rule is that a vendee under an agreement for the sale and purchase of property which does not ......