Gile Inv. Co. v. Fisher

• Decision Date: 06 January 1919
• Docket Number: 14886.
• Court: Washington Supreme Court
• Parties: GILE INV. CO. v. FISHER et al.

177 P. 710

104 Wash. 613

GILE INV. CO. v. FISHER et al.

No. 14886.

Supreme Court of Washington

January 6, 1919

Department 2.

Appeal from Superior Court, Pacific County; H. W. B. Hewen, Judge.

Suit by the Gile Investment Company against H. H. Fisher and another doing business under the firm name and style of Fisher Thorsen & Co., and others. Judgment for plaintiff, and defendants appeal. Affirmed.

N. H Bloomfield, of Sea View, for appellants.

Welsh &amp Welsh, of South Bend, for respondent.

HOLCOMB, J.

Respondent brought this action to foreclose its mortgage in July, 1916. On April 2, 1913, the Klipsan Land Company executed and delivered to the respondent three promissory notes, each for $3,356.25, with interest at 6 per cent. per annum until paid payable in one, two, and three years respectively. For the security of these notes the Klipsan Land Company executed and delivered its mortgage. No part of the notes or mortgage had ever been paid, excepting that on April 13, 1914, $500, on May 7, 1914, $50, on June 6, 1914, $50, and on October 10, 1915, $50, were paid.

The mortgage provided that, in case default be made in the payment of the principal or interest on any of said notes, the mortgagee had the option to elect and declare all of the notes to be due. It further provides:

'It is agreed between the parties hereto that the first party may, if he so desires to, cause said lands above described, or any part thereof, to be platted into lots and blocks, dedicating streets, alleys and public way to the public, and that immediately upon said plat being placed of record, the land so dedicated for streets, alleys or public way shall thereupon be discharged from the lien of the mortgage without any further action on the part of either party hereto.

'It is further agreed that if the first party shall plat said property above described or any part thereof into lots and blocks, that it may sell and dispose of any of said lots or any number of lots, and the second party will execute the proper instrument or instruments discharging from the lien of the mortgage the property so sold upon the first party giving to the second party one-half of the purchase price so received by second party for the property so sold, which payment so made shall apply on the principal and interest hereby secured. No lot to be sold for less than $50.00.'

A plat of the lands was made, but it was never filed or recorded in the office of the county auditor for the reason that the civil engineer refused to deliver same until paid for his services. The Klipsan Land Company or Klipsan Hotel Company commenced to erect a hotel building upon a part of the platted town-site property, which would comprise about six to eight lots of land approximately 300 by 450 feet in dimension, included in the Klipsan Land Company's mortgage to the respondent. Defendants Lee, Kline, and Lagerquist performed work and labor upon the hotel building during 1914, and filed liens therefor which were assigned to defendants Fisher, Thorsen & Co. who had sold and delivered building material for the hotel building from June to September, 1914, and filed a lien for same. On June 12, 1915, Fisher, Thorsen & Co. foreclosed these liens and obtained judgment for $1,436.18, costs $32.40, and an attorney's fee of $150, against the Klipsan Land Company, the only defendant. January 12, 1916, execution issued on this judgment, and Fisher, Thorsen & Co. purchased at the sheriff sale on February 19, 1916, for the sum of $1,720.87, the property described in the sheriff's deed issued to it February 24, 1917.

It was alleged by appellants that the Klipsan Land Company, when the material was used and when the work and labor were performed in the construction of the hotel building, had represented and agreed with and assured these several defendants that the indebtedness so created would be paid in cash, and, if not that they should and would have a lien upon the building and premises, with the right of removal of the building, inasmuch as it could be removed without injury to the land; that respondent had knowledge of and acquiesced in the agreement and representations of the Klipsan Land Company with the other defendants herein; that the hotel building can be removed without injury to the land, and appellants desire to remove same; that the erection of the building and the furnishing of labor and material by defendants were with the knowledge, consent, and concurrence of respondent for the purpose of increasing the value of the property under mortgage and its other holdings; that appellants were assured by the Klipsan Land Company that respondent's mortgage provided that the premises upon which the building was to be erected could and would be released from the effect of the respondent's mortgage upon payment of a minimum price...