Jacobs v. Teachout

• Decision Date: 04 October 1923
• Docket Number: 17910.
• Citation: 126 Wash. 569,219 P. 38
• Court: Washington Supreme Court
• Parties: JACOBS v. TEACHOUT et al.

219 P. 38

126 Wash. 569

JACOBS v. TEACHOUT et al.

No. 17910.

Supreme Court of Washington

October 4, 1923

Department 2.

Appeal from Superior Court, Benton County; John Truax, Judge.

Action by J. L. Jacobs against Ida G. Teachout and the Security State Bank of Richland, wherein defendant Teachout filed a cross-complaint. From judgment for defendants, plaintiff appeals. Affirmed.

Charles R. Sargent, of Chelan, and Corbin & Easton, of Wenatchee, for appellant.

Moulton & Jeffrey, of Kennewick, for respondents.

MAIN C.J.

The plaintiff brought this action to recover the sum of $1,000 which was the initial payment upon a contract for the purchase of certain real estate; the complaint alleging that a marketable title had not been tendered. The material allegations of the complaint were denied by the answer, and a cross-complaint was filed in which Ida G. Teachout sought a judgment for the $1,000, which was then in the possession of the other defendant, the Security State Bank of Richland, in escrow. The trial resulted in a judgment denying the relief sought by the complaint and awarding to Mrs. Teachout a judgment for the $1,000. From this judgment the plaintiff appeals.

The facts essential to be stated may be summarized as follows: On the 1st day of January, 1918, J. H. Brenneman and wife were the owners of a tract of land near Richland in Benton county and on this date contracted to sell the same to one C. S Teachout. While this contract was in existence, and before all the payments had been made which it provided for, Teachout died. Thereafter Mrs. Teachout continued to make the payments as they became due. On April 12, 1921, the appellant, J. L. Jacobs, contracted with one C.J. Dam for the purchase of the same property. A thousand dollars was paid at the time the terms were agreed upon, and what is called a 'purchase-money receipt' was issued. The $1,000 was paid into the Security State Bank in escrow, to be held pending the examination and approval of the title. The purchase-money receipt was signed by both Jacobs and Dam, and it contained among other things the following:

'A marketable abstract or certificate of title from a reliable abstract company is to be furnished to the purchaser within ten days. It is agreed that if the title to said premises is not marketable or cannot be made so within ninety days, the earnest money herein receipted for shall be refunded. * * *'

The abstract was delivered within the ten days mentioned in the contract, and was handed to the attorney for the appellant for examination. It appeared from the abstract that the title to the property was still in the Brennemans, and considerable correspondence then took place between the attorneys for the respective parties. As a result the Brennemans conveyed the title to the respondent Mrs. Teachout. After this a further objection was interposed to the title, and a suggestion was made that, in order to make it marketable, probate proceedings would be necessary. C. H. Teachout, the deceased, left a will by which, after making certain minor bequests of specific personal property, he bequeathed the residue of his estate to 'Ida G. Teachout (his wife), and to my daughter, Hazel, to divide as they please.' The daughter, by quitclaim deed, conveyed all of her interest in the property here in controversy to her mother, the respondent. In order to meet the objection to the title, the will was probated in regular course, Mrs. Teachout was appointed executrix, and the will named her as such. The interest of the estate in the property was in the probate proceedings found to be less than $3,000, and under Rem. Comp. Stat. § 1473, was awarded and set off to the surviving spouse, Mrs. Teachout. After this the abstract was completed, showing the probate proceedings, and Mrs. Teachout tendered conveyance thereof to the appellant, who refused to go on with the contract, declared a rescission, and brought this action to recover back the money which he had already paid, which was then in escrow. Before the case was heard on the merits, the appellant moved the court for an order requiring the respondent to elect whether she would seek damages for breach of the contract under her cross-complaint or would wage the action on her part for specific performance. The court declined to require the election, and this is suggested as the first error.

The action by the appellant was to recover the $1,000 which he had paid. The respndent resisted this, and sought a judgment directing that it be paid over to her. If this money should be paid to the respondent under the judgment, and the appellant should fail to meet the subsequent payments as they are called for in the contract, the question as to the relief that the respondent would be entitled to would then be presented. It is not necessarily involved in the case upon the present record. In any event, the facts are not in dispute; the evidence consisting largely of correspondence and stipulated facts, and the respondent was entitled to the relief which under the facts the law gave her, without making the election which the appellant sought to require.

The principal question in this case is whether the title to...