Hoover v. Sandifur

• Decision Date: 26 August 1946
• Docket Number: 29958.
• Citation: 25 Wn.2d 791,171 P.2d 1009
• Parties: HOOVER v. SANDIFUR et al.
• Court: Washington Supreme Court

171 P.2d 1009

25 Wn.2d 791

HOOVER v. SANDIFUR et al.

No. 29958.

Supreme Court of Washington

August 26, 1946

Department 2

Action by Claude G. Hoover against C. Paul Sandifur and Evelyn J Sandifur, his wife, and others to compel specific performance of an option clause in a contract. From a judgment of dismissal, the plaintiff appeals.

Reversed and remanded with direction.

MILLARD J., dissenting.

Appeal from Superior Court, Spokane County; Louis F. Bunge, judge.

Keith &amp Winston and Stimson & Donahue, all of Spokane, for appellant.

Paul F. Schiffner, Randall & Danskin, and Arthur A. Lundin, all of Spokane, for respondents.

BLAKE Justice.

Plaintiff brought this action to compel specific performance of an option clause contained in a contract entered into between him and the defendant C. Paul Sandifur on November 19, 1942. The court sustained a demurrer to the complaint; whereupon plaintiff filed an amended complaint, a demurrer to which the court also sustained. The plaintiff refused to plead further, and the court entered judgment dismissing the action. Plaintiff appeals.

So far as concerns the question to be determined on this appeal, the essential facts set up in the amended complaint may be summarized as follows:

Prior to November 19, 1942, plaintiff owned and operated a taxicab business in Spokane, known as 'Radio Cab Company.' Defendants owned and operated a similar business, known as 'Spokane Cab Company.' On that date, plaintiff and defendant Sandifur entered into a contract whereby plaintiff sold the Radio Cab Company business and equipment to defendant Sandifur for fourteen thousand five hundred dollars. The contract provided that the

'First Party [plaintiff] shall have an option to repurchase said Radio Cab Company * * * said purchase price to be the sum of Seven Thousand Five Hundred Dollars ($7500.00) for good will, taxicab stands and rights other than mobile equipment. * * * Said option shall be effective for six months after the duration and/or six months after the discharge of said First Party from the Armed Forces of the United States, in the event that the First Party shall be in said Armed Forces, but in no event shall said option be effective for more than three years after the duration of the war. If the First Party should be discharged from said Armed Forces prior to the end of the war, it is understood and agreed that the aforesaid option shall not be in effect during the duration, except by written agreement of the parties.' (Italics ours.)

As to what the parties meant by the term 'duration,' it is alleged in the amended complaint: 'That at the time of entering into such agreement on or about November 19, 1942, it was the intention and the purpose of the plaintiff and defendants to provide that such option for repurchase should be effective upon the cessation of actual hostilities of the war by the last enemy of the United States, after which event it might be expected that the plaintiff would be discharged from the military service and return to his civilian business and employment, unless plaintiff's discharge occurred after such cessation of hostilities, in which case such option for repurchase should be effective upon such discharge; that in the second paragraph of Section (6) of such agreement regarding the time when such option would be effective, the terms 'during the duration' and 'prior to the end of the war' were at all times used in the sense and intended by the parties to mean and designate the period of actual hostilities with the enemy, and the terms 'after the duration' and 'after the duration of the war' were at all times used in the sense and intended by the parties to mean and designate the period after the cessation of actual hostilities by the surrender of the last remaining enemy of the war.'

In sustaining the demurrer to the amended complaint, the court followed a line of decisions holding that the termination of a state of war is a political, rather than a judicial, question and may be brought about only by legislative resolution or executive proclamation. United States v. Anderson, 76 U.S. 56, 9 Wall. 56, 19 L.Ed. 615; The Protector, 79 U.S. 700, 12 Wall. 700, 20 L.Ed. 463; Palmer v. Pokorny, 217 Mich. 284, 186 N.W. 505; State of Louisiana v. Burgess, 23 La.Ann. 225; Perkins v. Rogers, 35 Ind. 124, 9 Am.Rep. 639.

There is, however, another line of decisions holding that such terms as 'duration' and 'end of war' mean, as commonly understood, the cessation of actual hostilities. Nelson v. Manning, 53 Ala. 549; Kaiser v. Hopkins, 6 Cal.2d 537, 58 P.2d 1278; Zinno v. Marsh, Sup., 36 N.Y.S.2d 866; Scott v. Commissioner of Civil Service, 272 Mass. 237, 172 N.E. 218; United States v. Hicks, D.C., 256 F. 707; Re Cooper's Estate, All England Law Reports (Ann.), 1946, vol. 1, part 1, p. 28; LeFevre v. Healy, 92 N.H. 162, 26 A.2d 681; State ex rel. Peter v. Listman, 157 Wash. 229, 288 P. 913, 915.

In these decisions, the courts apply the rule that words and phrases contained in contracts and statutes will be construed in the light of common understanding and usage, rather than in a technical sense.

In the case last cited, the rationale of the decisions was stated by this court as follows:

'The words must be read in a sense which harmonizes with the subject-matter and the general purpose and object of the amendment, consistent of course with the language itself. The words must be understood, not as the words of the civil service commission, or the city council, or the mayor, or the city attorney, but as the words of the voters who adopted the amendment. They are to be understood in the common popular way, and, in the absence of some strong and convincing reason to the contrary, not found here, they are not entitled to be considered in a technical sense inconsistent with their popular meaning. * * * After the Armistice was signed, it was a most common thing to say and to understand that the war had ended. The soldiers, sailors, and marines commenced at once to return in large numbers.

'The President, in his message on November 11, 1918, giving formal and official information to Congress and at the same time, by that means, speaking to all the people of the United States, after enumerating the thirty-five articles of the Armistice that had been signed, immediately said: 'The war thus comes to an end.' Those words had a popular meaning. Everybody understood them. The war was over because, as it was further said in that message, 'having accepted the terms of the Armistice, it will be impossible for the German command to renew it.''

While we are persuaded that this and kindred decisions are sound in reason and in their application of a fundamental rule in the...