Goedecke v. Viking Inv. Corp.

• Decision Date: 20 February 1967
• Docket Number: No. 38787,38787
• Citation: 424 P.2d 307,70 Wn.2d 504
• Court: Washington Supreme Court
• Parties: Arne G. GOEDECKE and Louise Goedecke his wife, Respondents and Cross-Appellants, v. VIKING INVESTMENT CORPORATION, formerly known as Parker & Sanwick Investments, Inc., a Washington corporation, Appellants.

Page 504

70 Wn.2d 504

424 P.2d 307

Arne G. GOEDECKE and Louise Goedecke his wife, Respondents and Cross-Appellants, v. VIKING INVESTMENT CORPORATION, formerly known as Parker &amp Sanwick Investments, Inc., a Washington corporation, Appellants.

No. 38787.

Supreme Court of Washington, Department 2.

Feb. 20, 1967.

[424 P.2d 308] Hulbert S. Murray, Seattle, for appellants.

Schweppe, Reiter, Doolittle & Krug, Robert R. Beezer, Thomas R. Beierle, Seattle, for respondents.

OTT, Judge.

March 23, 1962, Arne G. Goedecke entered into a contract to purchase from Parker & Sanwick Investments October 19, 1964, the final payment on the purchase price of the contract in the sum of $100,272.95 was in default and upon that date the seller served notice of intention to declare a forfeiture and to cancel the contract if the payment was not made by the 10th day of November, 1964.

Inc., now Viking Investment Corporation, certain real estate adjacent to the City of Renton for the sum of $349,514, to be paid in installments. The earnest money agreement dated February 23, 1962, provided inter alia "that public sewers are available to property".

November 9, 1964, Arne G. Goedecke and his wife commenced this action against the Viking Investment Corporation and the Retirement Income Corporation, in which action the plaintiffs sought specific performance of the real-estate contract and deposited into court the sum of $100,272.95, which they alleged to be the amount due and owing on the contract. Plaintiffs alleged that the Retirement Income Corporation claimed an interest in the real estate which interest, if any, was acquired subsequent to the contract and that the rights of the Retirement Income Corporation were junior to the claims of the plaintiffs. They further alleged that the Viking Investment Corporation had breached its contract which provided "that public sewers are available to property" and that by virtue of the breach the plaintiffs had been damaged in excess of $60,000, and prayed that the court adjudicate the sums due and owing between the parties, that the defendant Viking Investment Corporation be required to furnish a good and sufficient warranty deed to the real estate, and that the funds deposited into court be distributed to those entitled thereto.

The Viking Investment Corporation answered the complaint, denied that it had breached the contract, and prayed that the contract be forfeited because of the failure of the plaintiffs so make payments in accordance with the terms of the contract.

The case was tried to the court which entered findings of fact, conclusions of law, and judgment. The court denied On appeal, appellant Viking Investment Corporation contends that the court erred (1) in not declaring a forfeiture; (2) in directing specific performance of the contract; and (3) in awarding the respondents damages in the sum of $36,000 predicated upon the alleged breach of the contract. We have considered each of the assignments of error as they relate to (1) and (2) and find no merit in either of these assignments of error.

forfeiture of the contract and ordered its specific performance; and required Viking Investment Corporation to make, execute and deliver a good and sufficient warranty deed to the property. The court further awarded the plaintiffs an offset in the sum of $36,000 as damages "because public sewers were not available to property which plaintiffs purchased from the defendant Viking Investment Corporation."

With reference to (3), the pertinent portions of the court's findings of fact and conclusions of law are as follows:

A road running generally from the property being purchased by Goedecke to the sewer facilities at Seventh and Jones Streets in Renton runs through the Puget Sound property in Section 21, Township 23, North, Range 5 E.W.M. In 1880, pursuant to the laws as then in force, the Commissioners of King County authorized the establishment of King County Road No. 63 which is also known as McCallister Road. If the plaintiff was to establish sewer facilities from the property he was purchasing to Seventh and Jones, this road was the right-of-way through which such a sanitary sewer line would be constructed. At the time the real estate contract was executed, the parties contemplated that this right-of-way would be available for such use. Finding of Fact No. 5.

After considering the testimony of the parties, the City Engineer of the City of Renton, the Assistant King County Engineer and Greathouse, in addition to several exhibits relating to the establishment and location of McCallister Road, the court concludes that no such County Road can be ascertained on the site from any description of record. These facts being so, as a practical matter, public sewers were not available to the property The plaintiffs are entitled to judgment against the defendant Viking Investment Corporation in the sum of $36,000.00 because public sewers were not available to property which plaintiffs purchased from the defendant Viking Investment Corporation. Conclusion of Law No. 2.

being purchased by Goedecke. (Italics ours.) Finding of Fact No. 6.

Whether public sewers were available to the property by the use of McCallister Road stands or falls on whether McCallister Road was available to respondents as a public access to 7th and Jones Streets in Renton.

The record establishes the following facts. August 17, 1880, the Board of County Commissioners of King County approved the survey establishing McCallister Road and ordered that it be opened as a public road:

[I]t is Ordered by the board that said report, plat and survey be and they are hereby approved and accepted by the board, and the Auditor is hereby directed to record the same in the road book of the County, and from henceforth said road shall be considered a public highway; and it is further ordered by the board that the Supervisor of roads for road district No. 21, be and he is hereby directed to open said road according to law; ***.

In addition to the order of the county commissioners opening the road, the record shows (1) a copy of the actual survey of the road, (2) that the deeds to the actual right of way acquired are recorded in King County, and (3) that the road appears in title reports. In this regard, Mr. Wilson, the City Engineer of the City of Renton, testified as follows:

Q. I will ask you on Section 21 as to whether you have any knowledge of any conveyance under which any public authority have title to that road? A. I have not made a complete study on it because I had no particular need to but I am aware that there is a right-of-way there, as per title reports, and I have seen the deed. Q. You have seen the deed? A. Yes. Q. Who has that deed? A. King County.

Exhibit 14 is a map copyrighted by Kroll Map Company, Inc., dated January 1, 1958, which shows McCallister Road as it crosses the property of Puget Sound Power and Light Q. Now, on what do you base your knowledge that it's a public road? A. It appears on title reports and there was an attempt by Mr. Goedecke to have it vacated and at that time it came to my knowledge that there was a right-of-way there.

Company, and connects with the intersection of 7th and Jones Streets in Renton. Exhibit 32, a certified map of King County, shows McCallister Road to be 60 feet in width, its location being placed on the map from an aerial photograph taken in 1937. The respondent Mr. Goedecke recognized that McCallister Road did in fact exist. He petitioned that McCallister Road be vacated by the City of Renton and the petition was denied. In this regard the City Engineer of Renton testified:

That a road known as McCallister Road crosses the Puget Sound Power and Light Company property was testified to by Mr. Greathouse, an associate engineer of Puget Western (a subsidiary of Puget Sound Power and Light Company) who stated as follows:

Q. Have you observed any trails that are alleged to have been McCallister Road? A. Yes. Q. About how wide are they? A. In terms of a car width the brush touches both sides in many instances. *** Q. And when you joined the organization in February of 1963 that road was there, was it not? A. There was a drivable path, I would say, at some abuse of equipment. Q. Do you know how long it has been there, Mr. Greathouse? A. I have heard stories about it being there since the early memory--. *** Q. You have heard stories it has been there how long, Mr. Greathouse? A. Since the earlier memory of the people that mentioned the road. Q. Since 1880, wasn't it? A. I do not know that. Q. It has been there an awful long time according to your stories as told to you? Right? A. That is what I have heard.

The traveled road which Mr. Greathouse designated and acknowledged to be McCallister Road was the "right-of-way" which the trial court, in finding of fact No. 5, found to be the means of access to the 7th and Jones Streets sewer facility. There is no evidence in the record that the existing McCallister Road is not within the area which King County had acquired by deed. There is some As opposed to this evidence of the existence of McCallister Road, the respondent's witness, Mr. Gonnason, Assistant County Engineer for King County, testified that the King County Engineer's file on McCallister Road did not contain a copy of the order establishing the road nor did the file indicate that the county...