Ecolite Mfg. Co., Inc. v. R.A. Hanson Co., Inc.

• Decision Date: 27 March 1986
• Docket Number: No. 6703-3-III,6703-3-III
• Citation: 43 Wn.App. 267,716 P.2d 937
• Parties: ECOLITE MANUFACTURING CO., INC., a Washington corporation, and James F. Felice, a single man, Appellants, v. R.A. HANSON CO., INC., a corporation, Respondent.
• Court: Washington Court of Appeals

Page 267

43 Wn.App. 267

716 P.2d 937

ECOLITE MANUFACTURING CO., INC., a Washington corporation and James F. Felice, a single man, Appellants, v. R.A. HANSON CO., INC., a corporation, Respondent.

No. 6703-3-III.

Court of Appeals of Washington Division 3, Panel One.

March 27, 1986.

Joseph P. Delay, Delay, Curran, Thompson & Pontarolo, Spokane, for appellants.

F.J. Dullanty, Jr., Winston & Cashatt, Spokane, for respondent.

GREEN, Chief Judge.

Ecolite Manufacturing Co., Inc., and James F. Felice executed separate earnest money agreements for the purchase of real estate from R.A. Hanson Co., Inc. This action was brought by them to specifically enforce those agreements or obtain damages. All parties moved for summary judgment which was granted in favor of Hanson on the basis the agreements did not comply with the statute of frauds. Ecolite and Mr. Felice appeal. We affirm.

The earnest money agreements were both executed in 1978, covering two parcels of real estate in Spokane County. Ronald N. Caferro, on behalf of Ecolite, agreed to purchase "67,500 square feet--approximate dimensions being 250' X 270'." (Italics ours.) James Felice agreed to purchase an adjacent "75,000 square feet--approximate dimensions being 250' X 300'." (Italics ours.) The agreements described the property as:

a portion of the R.A. Hanson Co. East Sullivan Industrial Center ... To be surveyed and attached. ... The location to be approximate as in Attachment A and shall border the East-West perimeter road on the south side of the parceled property.

(Italics ours.) Attachment A to each agreement was a sketch of each parcel. Both agreements were on title company forms which stated:

The parties herein hereby authorize agent to insert over their signatures the correct legal description of the above designated property if unavailable at time of signing, or to correct legal description entered if erroneous or incomplete.

Neither transaction was closed. About 4 years after the agreements were executed, the broker, who was closing his business, discovered the earnest money was still in his trust account. Since there had been no communication from the parties, he mailed checks for the money to Ecolite and Mr. Felice. They returned the money to the broker and demanded performance. They also employed a surveyor who surveyed the area purportedly covered by attachment A to each of the agreements and prepared a legal description.

Thereafter, this action was commenced for specific performance or damages. The trial judge granted summary judgment dismissing the action on the basis the property descriptions in the earnest money agreements were inadequate to satisfy the statute of frauds and, hence, the agreements were unenforceable. The court also ruled the survey could not supply the descriptions which were not known at the time the agreements were signed. Ecolite and Mr. Felice appeal contending this was error.

We said in Howell v. Inland Empire Paper Co., 28 Wash.App. 494, 495-96, 624 P.2d 739, review denied, 95 Wash.2d 1021 (1981):

In Bigelow v. Mood, 56 Wash.2d 340, 341, 353 P.2d 429 (1960), the court reiterated the long established rule that:

[I]n order to comply with the statute of frauds, a contract or deed for the conveyance of land must contain a description of the land sufficiently definite to locate it without recourse to oral testimony, or else it must contain a reference to another instrument which does contain a sufficient description.

(Citations omitted.) It is also well settled that a description which designates the land conveyed as a portion of a larger tract without identifying the particular part conveyed does not meet the requirements of this rule. Martinson v. Cruikshank, 3 Wash.2d 565, 567, 101 P.2d 604 (1940); Garrett v. Shriners Hosps. for Crippled Children, 13 Wash.App. 77, 79, 533 P.2d 144 (1975); cf. Kupka v. Reid, 50 Wash.2d 465, 468, 312 P.2d 1056 (1957); Mary M. Miller & Sons v. Daniels, 47 Wash. 411, 413, 92 P. 268 (1907) (tax foreclosure proceedings). An agreement containing an inadequate legal description of the property to be conveyed is void, Schweiter v. Halsey, 57 Wash.2d 707, 710, 359 P.2d 821 (1961), and is not subject to reformation, Fosburgh v. Sando, 24 Wash.2d 586, 589, 166 P.2d 850 (1946), Martinson v. Cruikshank, supra at 568-69, , or specific performance, Herrmann v. Hodin, 58 Wash.2d 441, 443, 364 P.2d 21 (1961).

See also Barth v. Barth, 19 Wash.2d 543, 556, 143 P.2d 542 (1943). The question here is whether attachment A to the agreements and the survey which was made from the attachments rendered the description sufficiently definite to locate the property without recourse to oral testimony. We agree with the trial court that they do not.

The parcels to be conveyed are described by the earnest money agreements as portions of a larger undefined parcel--East Sullivan Industrial Center. Their dimensions are listed as approximate. Their location is also "approximate- § in Attachment A". (Italics ours.) In these circumstances, attachments A to the agreements only approximately outline the property to be conveyed. Moreover, the attachments do not show the township, section, range or meridian within which the property is located. Nor is the southern boundary east-west perimeter road referred to in the description shown on the attachments. They are thus patently insufficient to definitely locate the property without recourse to parol evidence and, therefore, violate the statute of frauds. See Bigelow v. Mood, 56 Wash.2d 340, 353 P.2d 429 (1960); Bingham v. Sherfey, 38 Wash.2d 886, 234 P.2d 489 (1951); Fosburgh v. Sando, 24 Wash.2d 586, 166 P.2d 850 (1946).

Assuming a survey could be made from attachments A, its only purpose would be to locate the boundaries of the property on the ground. It follows then that the survey here could only approximately locate the boundaries. Thus, it does not cure the inadequate descriptions in the earnest money agreements. See White v. Rehn, 103 Idaho 1, 644 P.2d 323 (1982); Macera v. Cohen, 106 R.I. 465, 261 A.2d 841 (1970); U.S. Enters., Inc. v. Dauley, 535 S.W.2d 623 (Tex.1976).

Further, the survey was obtained by the purchasers, Ecolite and Mr. Felice, 4 years after executing the agreements and after the broker's attempt to refund the earnest money. See also Williams v. Fulton, 30 Wash.App. 173, 177 n. 2, 632 P.2d 920 (1981); Garrett v. Shriners Hosps. for Crippled Children, 13 Wash.App. 77, 533 P.2d 144 (1975) (survey or legal description filed after dispute or suit cannot be used to render earnest money agreement certain pursuant...