Eberhart v. Lind, 24503.

• Decision Date: 21 June 1933
• Docket Number: 24503.
• Citation: 23 P.2d 17,173 Wash. 316
• Parties: EBERHART v. LIND et al.
• Court: Washington Supreme Court

23 P.2d 17

173 Wash. 316

EBERHART v. LIND et al.

No. 24503.

Supreme Court of Washington

June 21, 1933

Department 2.

Appeal from Superior Court, King County; John A. Frater, Judge.

Action by George Eberhart against A. H. Lind and wife and others. From a judgment of dismissal, plaintiff appeals.

Affirmed.

John W Heal, Jr., of Seattle, for appellant.

Julius L. Baldwin and Jay C. Allen, both of Seattle, for respondents.

STEINERT, Justice.

This is an action to rescind a real estate contract and the subsequent assignment thereof to plaintiff as vendee, and to recover the purchase price paid thereon. Demurrers to the second amended complaint having been sustained, and plaintiff having elected to stand on his pleading, a judgment of dismissal was entered, from which plaintiff appeals.

According to the complaint as finally amended and the exhibits thereto attached, on which we must rely for a statement of the facts respondents Rosaia were, on May 2, 1930, the owners of two lots of ground located in the vicinity of what is referred to as the Aurora Avenue bridge, in Seattle. On that day the Rosaias and one H. F. Jones entered into a written agreement by the terms of which the former agreed to sell, and the latter agreed to purchase, the property for $3500, payable $500 in cash, which was then and there receipted for, and the balance in installments of $250 to be paid on or Before each six months from date of the contract. Upon completion of full payment the property was to be conveyed by warranty deed as of date May 2, 1930. The contract contained the usual forfeiture clause for failure by vendee to make payment or to perform any of the covenants or conditions therein contained. On the same day, that is, May 2, 1930, Jones, by written assignment, sold and transferred his interest in the contract, and in the land described therein, to respondent A. H. Lind. Four days later, on May 6, 1930, respondents Lind, by a similar assignment, sold and transferred their interest in the contract and land to appellant. Prior to the execution of the original contract between the Rosaias and Jones, it appears that Scott-Poor, Inc., a real estate firm had negotiated with the appellant for the purchase by him of the property, and on April 29, 1930, an instrument, denominated 'Revised form of earnest money receipt adopted by the Seattle Real Estate Board,' was signed by appellant as purchaser of the property and by Scott-Poor, Inc., as agent (its principal not being designated). According to that instrument so signed, the property involved herein was to be purchased by appellant for $4500, of which $250 was then paid, with a further sum of $1250 additional cash to be paid on showing of good title, and the balance of $3,000 to be paid by the assumption of the original contract between the Rosaias and Jones. Title was to be shown by title insurance policy certified to April 29, 1930, the date of the instrument just referred to, and the property was to be conveyed 'by assignment of contract for warranty deed free and clear of all encumbrances.' The sale was to be consummated in the office of the real estate agent. The balance of the initial cash payment of $1500 was fully paid by Eberhart by May 6, 1930, and thereafter, on May 16, 1930, the real estate firm filed for record the original contract and the successive assignments. The filings, however, it is alleged, were without the knowledge of the appellant.

The first deferred installment under the original contract became due November 2, 1930. Appellant did not pay, or offer to pay, the amount then falling due. Neither did the Rosaias forfeit the contract for nonpayment. The reason assigned by the appellant in his complaint for his failure to make the payment is contained in the following allegation: 'That on or about the 2nd day of November, 1930, it had become general knowledge in the City of Seattle, and in particular to the defendants herein, and of the plaintiff, that the City of Seattle was then taking steps to condemn said above described property for the purpose of constructing what is known as the Aurora Bridge, and thereupon it had become apparent to the plaintiff that the defendants, Rosaia, would not be in a position to convey the lands above described or to comply with their contract of sale; and that plaintiff's offer to make said payment of Two Hundred and Fifty Dollars ($250), would have been a useless ceremony and therefore he did not make the payment.' It is then alleged that thereafter, on November 18, 1930, the city actually did condemn the property. What the amount of the condemnation award was we are not advised, nor is it indicated when the judgment in that case was entered. The appellant brought this action against respondents Rosaia and Lind upon the theory of total failure of consideration to the appellant by virtue of the condemnation of the property. He now seeks to recover from respondents the $1,500 paid by him to Lind.

We take up, first, the case against the Rosaias.

This action is one of rescission. It is apparent that at the time of the commencement of the action appellant was himself in default. It is a well-settled rule that a party in default cannot maintain an action...