Harris v. Seattle Land & Imp. Co.

• Decision Date: 22 November 1922
• Docket Number: 17496.
• Parties: HARRIS v. SEATTLE LAND & IMPROVEMENT CO.
• Court: Washington Supreme Court

211 P. 282

122 Wash. 323

HARRIS v. SEATTLE LAND & IMPROVEMENT CO.

No. 17496.

Supreme Court of Washington

November 22, 1922

Department 2.

Appeal from Superior Court, King County; A. E. Griffiths, Judge.

Action by C. H. Harris against the Seattle Land & Improvement Company. From judgment for plaintiff, defendant appeals. Reversed.

Fred W Catlett, of Seattle, for appellant.

Osmond Walker and C. W. Strother, both of Seattle, for respondent.

HOVEY, J.

Respondent brought this action for the specific performance of the following agreement:

'$20.00.

Seattle, Washington, May 6, 1918.

'This is a receipt, executed in duplicate, for twenty and no/100 dollars, this day paid to the undersigned by Clarence H. Harris of King county, state of Washington, with the following understanding, to wit: Whereas, said Clarence H Harris has this day selected lots five (5) and six (6) in block three (3) of Marco's addition to the city of Seattle, and desires to purchase the same, for the sum of five hundred seventy-five dollars, and has paid for the option so to do the sum of twenty and no/100 dollars: Now therefore, if the said Clarence H. Harris shall, in addition to the sum of twenty and no/100 dollars, for which this receipt is given, pay to the undersigned, its successors, or assigns, the sum of $555.00 on montly payments of $10.00 on the 6th day of each and every month hereafter until paid in full, with interest thereon at the rate of seven per cent per annum, payable monthly until paid, then in that case, the undersigned agrees to give said Clarence H. Harris or his assigns a warranty deed to said property above described excepting however a warranty against all taxes levied on said property for the years 1918 and all succeeding years, which the said Clarence H. Harris is to pay if said purchase is made. The entire balance, or any portion thereof in excess of the payments provided may be paid at any time.

'Time is of the essence of this agreement, and a failure on the part of the said Clarence H. Harris to make either of the above payments within the time herein specified for making thereof, shall, without notice, work a forfeiture of all rights of said Clarence H. Harris or his assigns, under this receipt, and all payments made by him or his assigns thereunder shall be forfeited and become the property of the undersigned and absolutely freed from the equitable incumbrances created by this receipt, it being expressly understood that in case of the failure of said purchaser to make said payments at the time and in the manner provided, no proceedings whatever, in law or equity, shall be necessary to work a forfeiture of the installments already paid, or the right to purchase said property. No assignment or transfer of this agreement, or any interest therein shall be valid of binding upon the Seattle Land & Improvement Company without their consent in writing.

'Title insurance to be delivered when $287.00 has been paid.

'All payments to be made to Seattle Land & Improvement Company at Seattle, Washington.

'Seattle Land & Improvement Company,

'By F. E. Sander, President.

'I have read and understand the foregoing receipt, and hereby agree to accept all of the provisions, terms and conditions as therein stated.

[Signed] C. H. Harris.'

He alleged payments as follows:

May 6, 1918 ...................

$ 20 00

May 12th (year not stated) .......

5 00

April 4, 1919 ...................

10 00

April 29, 1919 ...................

5 00

June 21, 1920 ..................

101 44

October 14, 1918 ................

10 00

June 6, 1918 ....................

10 00

December 11, 1918 ...............

10 00

August 6th (year not stated) ....

20 00

-------

Total ......................

$191 44

The complaint alleged that respondent erected a house upon the property described in the contract of the value of $2,500 at a time when he was in default in his payments, and that on December 30, 1921, he tendered to the appellant the sum of $560, being the balance due upon the contract, but that appellant refused to make conveyance.

Appellant demurred to this complaint, and, its demurrer being overruled, answered, admitting the contract the payments, and the tender, but denied the value of the house, and alleged affirmatively that there was erected a mere shell of a house, and did not exceed in value $600, and that it was erected immediately upon the giving of the receipt and prior to the delinquency in the making of payments. By affirmative defense and cross-complaint appellant alleged that the respondent became delinquent in his payments, and that on May 17, 1921, appellant notified respondent that the latter was in default, and that, unless full payments were made by June 1, 1921, all of respondent's interest in the land would be forfeited, and he was notified to vacate the premises. It is further alleged that at the special request of the respondent the time for the payment of delinquencies was extended to June 15, 1921, but that respondent continued in default, and made no tender until December 30, 1921. It is further alleged that respondent moved out of the premises and abandoned the same, and appellant found the same vacant, and abandoned and took possession, and thereafter sold said property to one Mary McCumber, and that the latter has fixed up and improved the same, and her interest was of record, and known to the respondent long prior to this suit.

Respondent replied, denying the giving of the notices alleged in the answer, and denied that he abandoned the property. Thereafter respondent moved for judgment on the pleadings, and by stipulation two letters from appellant to respondent and the letter from respondent to appellant, referred to in the answer, were attached thereto as exhibits to be considered by the court upon the motion, and the court thereupon granted respondent's motion, and made findings of fact and conclusions of law in accordance with the allegations of the complaint, and rendered judgment in favor of the respondent for specific performance.

The letters or notices given by appellant and referred to in the answer are as follows:

'May 17,

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