Hogan v. Kyle

• Decision Date: 06 January 1894
• Citation: 7 Wash. 595,35 P. 399
• Parties: HOGAN v. KYLE.
• Court: Washington Supreme Court

35 P. 399

7 Wash. 595

HOGAN v. KYLE.

Supreme Court of Washington

January 6, 1894

Appeal from superior court, King county; Mason Irwin, Judge.

Action by F. V. Hogan against George F. Kyle for breach of contract to buy real estate. From a judgment for plaintiff, defendant appeals. Reversed.

Preston Albertson & Donworth, for appellant.

H. B Slauson, for respondent.

DUNBAR, C.J.

On the 27th day of February, 1890, respondent and appellant entered into a written contract to sell the appellant certain real estate for the sum of $2,500, one-third of which was paid at the time of the execution of the contract; appellant to pay the balance of the purchase price in two equal installments the first of which was to be paid on the 27th day of May 1890, and the second on the 27th day of August, 1890. Time was expressly made the essence of the contract. The appellant paid no part of the purchase price, except the sum which was paid at the time the contract was executed. It does not appear that defendant entered into possession of the property, or exercised any control over it. On November 14 1892, suit was commenced by the respondent to recover a money judgment against the appellant for the amount of the two unpaid installments, with interest. The complaint simply alleged the making of the contract, failure to pay, the ownership of the property, and the tender of a good and sufficient deed prior to the commencement of the action. A demurrer was interposed to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and the defendant answered, alleging possession in the respondent, but denying his power to give good title. Alleging that respondent had never demanded of appellant the contract price of the land at any time prior to November 14, 1892, the date of the commencement of the action, and never tendered to appellant any deed or conveyance purporting to convey said land until said 14th day of November, 1892, and never at any time conveyed said premises; that, long prior to said last-named date, appellant had informed and notified respondent that he did not have or claim any further interest in said property, and that he would not pay any further installment provided for by said contract, and that the plaintiff did not, up to said November 14, 1892, assert any further right to the balance of said contract price, nor dissent to nor deny said claim of defendant that he was no longer bound by said contract; and that long prior to said last-named date the plaintiff had exercised said option reserved to him under said contract, and had elected to rescind said contract, and to retain as a forfeit the first payment that had been made to him by the defendant thereunder, aforesaid. At the outset of the trial, appellant objected to the introduction of any testimony in behalf of the plaintiff on the ground that no cause of action was stated in the complaint. This objection was overruled. At the conclusion of respondent's testimony, appellant moved for a nonsuit, which motion was overruled. Thereupon, he rested upon his motion, and did not offer any testimony; and the judge instructed the jury to bring in a verdict against the appellant for the balance of the contract price, with interest; which being done, judgment was entered thereon, from which judgment appellant has appealed. At the commencement of the action the appellant moved to have the case transferred to the equity calendar, which motion was denied. The demurrer and the motion for a nonsuit raised substantially the same questions.

The judgment in this case will have to be reversed, in any event for under its terms the appellant recovers the full purchase price, and is allowed to retain the land which represented the purchase price. In this case these are dependent obligations upon which the respondent is suing. When the first installment became due, he could have recovered the amount then due as upon an independent contract; but having elected to wait until the last installment became due, and upon the payment of which defendant would be entitled to a deed, the obligations become dependent. They all relate back to the contract, and appellant cannot sustain an action for either installment without proof of performance or readiness to perform on his part. McCroskey v. Ladd, (Cal.) 31 P. 558, and cases cited. In that case the court said: "There is but one single cause of action,-one and indivisible. The defendant, if he would maintain his deed, must pay all; and the plaintiff, if he would recover, must show such a performance on his part as would entitle him to all the unpaid consideration." It is not enough that the deed was tendered at any particular time, but the tender must be kept good so that it may be taken into consideration in the entry of the judgment. Plaintiff here simply shows that the tender had been made prior to the commencement of the action, and it is therefore insufficient excepting on the theory that the judgment could be rendered independently of the performance of his part of the contract by the vendor, which would result in allowing the vendor to keep both the money and the land. On that proposition we quote from Warvelle on Vendors, (page 961:) "There are cases, both in England and the United States, where, on the vendee's default, the vendor, having offered to perform, has been permitted to recover as damages the whole purchase price. The injustice of such a measure, however, is apparent on its face, for it gives the vendor his land, as well as its value, and is not now regarded as a correct rule in either country." The rule in such cases is that the vendor has a right to the fruits of his bargain, and is entitled to compensation for any loss he may suffer by reason of its nonconsummation. What his damages are, in such circumstances, must be alleged and proven, like any other fact in the case....