Ewing & Clark, Inc. v. Mumford, 22129.

• Decision Date: 14 July 1930
• Docket Number: 22129.
• Citation: 157 Wash. 617,289 P. 1026
• Court: Washington Supreme Court
• Parties: EWING & CLARK, Inc., v. MUMFORD et ux.

289 P. 1026

157 Wash. 617

EWING & CLARK, Inc., v. MUMFORD et ux.

No. 22129.

Supreme Court of Washington

July 14, 1930

Department 2.

Appeal from Superior Court, King County; Chester A. Batchelor Judge.

Action by Ewing & Clark, Inc., against W. J. Mumford and wife. Judgment for defendants, and plaintiff appeals.

Affirmed.

Karl H Kober, Elias A. Wright, and Sam A. Wright, all of Seattle for appellant.

Byers &amp Byers, of Seattle, John A. Homer, of Olympia, and Alfred J. Westberg, of Seattle, for respondents.

FULLERTON J.

In this action the appellant, Ewing & Clark, Inc., sought to recover from the respondents, Mumford, the sum of $1,067.93 as for a breach of a contract. There was a judgment in the court below in favor of the respondents, and the appeal before us is from that judgment.

On September 19, 1928, the respondents were the owners of a tract of land situated in the city of Seattle, in this state. They had acquired the property some two and one-half years prior to the date given from one Hainsworth. Hainsworth, while the owner of the property, had leased a part thereof to the Standard Oil Company for a term commencing on January 1, 1925, and terminating on December 31, 1929. The lease was in full force and effect at the time of the purchase by the respondents, and the title to the property was taken by them subject to the terms of the lease. Under the terms of the lease the lessee was granted the right to maintain on the premises a service station for the sale of gasoline, and other oils and products of petroleum. It also contained a provision granting to the lessee a preference right to purchase the leased part of the property should the owner desire to sell it.

The appellant is a real estate broker. It had in its employment a salesman, one Clark Ewing. Ewing learned from another broker that the respondents desired to sell the property, and he called at the respondents' home to ascertain the terms and conditions on which the property could be purchased, and procure a listing of the property for the firm for which he was working, and did obtain, so he testifies, 'a verbal listing' of the property. The price at which the respondents agreed to sell the property was $15,200 net to them.

Some few days later the appellant found a purchaser for the property in the person of one Dr. King, who agreed to purchase the property for $16,500, the consideration to be paid in cash. The appellant gave to King what is termed an earnest money receipt. The receipt acknowledges a payment of $500 on account of the purchase price, to be returned if the sale was not completed through the fault of the owner of the property. In the receipt the appellant was described as 'agent,' and it was specially provided that the agent was in no wise responsible for the delivery of the title to the property, and that the agreement was entered into subject to the approval of the owner. The instrument is dated September 29, 1928.

On the same day the appellant prepared in its office a form of contract by which the respondents gave to the appellant an option to purchase the property within ten days from its date at a price of $15,000. It provided that the property should be conveyed by a 'good and sufficient warranty deed, free from all liens and incumbrances of every nature,' except an assessment for paving, levied under an ordinance of the city of Seattle. The appellant knew at the time of the unexpired lease on a part of the property...