Garvey v. Barkley

• Decision Date: 19 November 1909
• Citation: 56 Wash. 24,104 P. 1108
• Parties: GARVEY v. BARKLEY.
• Court: Washington Supreme Court

104 P. 1108

56 Wash. 24

GARVEY v. BARKLEY.

Supreme Court of Washington

November 19, 1909

Department 2. Appeal from Superior Court, King County; John C. Higgins Judge pro tem.

Action by Frank Garvey, a minor, by John C. Garvey, his guardian ad litem, against James Barkley. From a judgment for defendant plaintiff appeals. Affirmed.

William C. Keith, for appellant.

Brady &amp Rummens, for respondent.

PARKER J.

This action was commenced by plaintiff to enforce specific performance of a contract to purchase certain land in Seattle. The defendant answered, praying for an affirmative decree against plaintiff forfeiting all his rights under the contract by reason of his alleged breach thereof. A trial before Hon. John C. Higgins, judge pro tem. resulted in findings and decree in favor of defendant, from which plaintiff has appealed.

The facts as found by the learned trial court, which we regard as fully sustained by the evidence, is so far as they are necessary to be noticed in determining the rights of the parties, are, in substance, as follows: The respondent, being the owner of the land involved, on the 21st day of July, 1906, entered into a written contract with plaintiff for the sale thereof upon terms and conditions recited in the contract as follows:

'(1) That purchase price for said land is eight hundred 00/100 dallars of which sum twenty-five 00/100 dollars has this day been paid as earnest money, the receipt whereof is hereby acknowledge by the party of the first part; the further sum of twenty-five 00/100 dollars to be paid on or before the 12th day of October, A. D. 1906, and twenty-five dollars each three months thereafter until the amount is fully paid with interest thereon from this date until paid at the rate of ten per cent. per annum, payable with each quarterly payment; paid at Asotin Bank, Asotin, Washington. * * *

'(3) Said lands to be conveyed by a good and sufficient deed with abstract of title to the said party of the second part when said purchase price shall have been fully paid.

'(4) Time is the essence of this contract, and, in case of failure of the said party of the second part to make either of the payments or perform any of the covenants on his part, this contract shall be forfeited and determined at the election of the party of the first part; and the party of the second part shall forfeit all payments made by him on this contract, and such payments shall be retained by the said party of the first part in full satisfaction and liquidation of all damages by him sustained; and he shall have the right to re-enter and take possession of said lands and premises and every part thereof.'

Twenty-five dollars was paid upon the execution of the contract as therein provided, and $25 paid thereon October 12, 1906. By the terms of the contract the sum of $25 and accrued interest became due thereon January 12, 1907. In the usual course of the mail, letters mailed at Seattle will arrive at Asotin on the third day thereafter. On January 12th, the day on which the $25 installment and accrued interest became due appellant caused to be mailed at Seattle a letter inclosing a draft for $25 addressed to the Asotin Bank, to apply upon the purchase price of the land, which was not received at the bank until January 17th. On January 11th respondent directed the Asotin Bank that, unless the whole amount to become due under the terms of the contract on January 12th was received by the bank on that day, it should not receive the same for the use of respondent. On January 16th, prior to the receipt by the bank of the $25 draft sent by appellant, the respondent wrote and mailed to appellant the following letter, which was received by him in due course: 'Asotin, Washington, January 16th, 1907. Frank Garvey, Esq., Seattle, Washington--Dear Sir: You are hereby notified that you have failed to comply with the terms of your contract with me under date July 26th, 1906 for the purchase by you from me of lots nine (9), ten (10), eleven (11) and twelve (12) of block thirty-six (36) of the re-plat of the Green Lake Home addition to the city of Seattle, King county, Washington, in this that you have failed to make the quarterly payment with interest, as provided in the first paragraph of our contract, when the same became due this present month: Therefore, in accordance with the terms of the 4th paragraph of said contract, by...