Jameson v. Wurtz

• Decision Date: 29 October 1964
• Docket Number: No. 431,431
• Citation: 396 P.2d 68
• Parties: Virginal JAMESON, Appellant, v. W. S. WURTZ, a/k/a Winn Wurtz, Zella M. Wurtz and Robert Portman, Appellees.
• Court: Alaska Supreme Court

Page 68

396 P.2d 68

Virginal JAMESON, Appellant, v. W. S. WURTZ, a/k/a Winn Wurtz, Zella M. Wurtz and Robert

Portman, Appellees.

No. 431.

Supreme Court of Alaska.

Oct. 29, 1964.

Charles J. Clasby, of Collins & Clasby, Fairbanks, for appellant.

Robert A. Parrish, by Millard F. Ingraham, Fairbanks, for appellees.

Before NESBETT, C. J., AREND, J., and DAVIS, Superior Court Judge.

AREND, Justice.

Virginia Jameson, plaintiff below, has appealed from an adverse decision of the superior court holding her equity as buyer under a long term real estate purchase contract forfeited because of her failure to comply with certain provisions of the contract.

On September 18, 1953, the plaintiff and her husband, Dick Jameson, who had been forced to dispose of his engineering business in Fairbanks because of a disabling illness, entered into a contract with W. S. and Zella Wurtz, defendants below, to purchase from the latter a Fairbanks automobile service station for the purpose of an investment. ^{1 1} The total purchase price of the property was $47,000, of which amount the Jamesons made a down payment of $15,000 and were required to pay the balance in installments of $500 on the 15th day of each month, plus interest at the rate of six per cent per annum. The contract also required them to pay the taxes, provide insurance and keep the property free of liens. It made no provision for the giving of notice between the parties in any respect. The property was under lease to Gilstrap and Martin at the time the Jamesons purchased it. The lease yielded a monthly rental income of $750. Its expiration date was January 1, 1957.

The Jamesons left Alaska shortly after their purchase of the service station. Gilstrap and Martin surrendered possession of the service station on January 1, 1957, as they were not interested in renewing the lease. So Virginia returned to Fairbanks, without her husband, to find a new tenant for the station.

Mr. Jameson died on January 31, 1957, leaving Virginia as his sole heir and devisee under his will. At the time of his death the assets of the couple consisted of about $600 in cash, Virginia's half interest in a $12,000 model or display home in Fairbanks, three or four $75 monthly payments remaining due from the sale of Mr. Jameson's former home, a $1,500 balance owing on an industrial building sold by Mr. Jameson, some corporate stock (value not stated in the record) and the service station.

Unable to find a new tenant, Mrs. Jameson decided to operate the station herself and to that end purchased the stock, supplies and equipment of the vacating lessees, Gilstrap and Martin, for $10,000. She used over half of the proceeds of her husband's life insurance to pay $3,500 of the purchase price and retired the $6,500 balance by an assignment of her $6,000 equity in the model home, plus some cash. In April of 1957 she borrowed $6,000 from the First National Bank of Fairbanks (hereinafter referred to as the bank) for the construction of a small addition to the service station building and for working capital.

It appears that Mrs. Jameson was advised by her doctor not to remain in Alaska, so she made arrangements with T. J. Williams, mentioned in note 1 above, to operate the service station for her and then left for Tacoma, Washington. However, the service station did not prosper under Williams's management and Mrs. Jameson had to return to take charge early in 1958. She found the inventory depleted and many bills unpaid. The payments on the purchase price of the service station and on the loan from the bank were not being met. Virginia herself was not employable because of ill health and she testified that she had no income or resources from which to make the payments which were due. The last payment made under the contract was on February 17, 1958, in the amount of $500 on the principal and $32.54 on interest, leaving at that time an unpaid balance of $5,500 on the purchase price; plus interest at the rate of six per cent per annum from the date of such last payment.

At about this time Mrs. Jameson contacted her supplier Union Oil Company of California in an effort to obtain a $25,000 loan from Union to be used to pay the Wurtzes and the various creditors of the service station business. Negotiations for the loan were carried on during the balance of 1958 and during 1959. In the meantime she leased the station on April 12, 1958, on a short term basis to one Herb Mayr, who had been recommended by Union.

In April of 1960 Mrs. Jameson, who was then in the State of Washington, received word from her attorney at Fairbanks that Union had decided not to make the loan. Mr. Wurtz seems to have been fully cognizant of Mrs. Jameson's efforts to obtain a loan from Union, for in January of 1960 he had inquired of Union about the status of the loan and was told at that time that there would be no loan. Thereafter, on May 17, 1960, he withdrew the contract from escrow at the bank as provided for in the contract in the event of default by the Jamesons and then informed Mrs. Jameson's attorney that he intended to finally forfeit the interest of Virginia Jameson in the property. At this time he also made an offer to certain officials of the bank to turn the contract over to the bank if the bank would pay him off. Concerning this offer he testified:

'* * * I put the papers down right in front of them, and I says 'here's the papers,' I says 'pay me off.' I says 'my indebtedness on this here contract of sales' I says 'are yours.' I says 'you can have them. All I want is my money.' And so Eddie [referring to Edward Stroecker, president of the bank] says 'no, we can't do it' * * *.'

Wurtz had made a somewhat similar offer to the bank by letter dated January 27, 1960.

On May 19, 1960, Robert Parrish as attorney for Mr. Wurtz sent a letter to Virginia, in care of her attorney, Charles Cole, advising her that her interest in the property had been forfeited and the escrow papers withdrawn from the bank on account of her default on payments. Shortly thereafter, Herb Mayr caused the keys to the service station to be delivered to Mr. Parrish, pursuant to the latter's request.

In July of 1960 one of the officers of the bank called Mrs. Jameson at Portland and informed her that 'there had been a foreclosure on the property' and that the bank would lend her $7,000 to pay up the balance of principal and the interest owing on the contract. She accepted the offer and executed a promissory note secured by a mortgage on the service station for the amount of the loan.

It was not until September 1960 when Mrs. Jameson returned to Fairbanks and called at Mr. Cole's office that she saw the 'forfeiture' letter addressed to her by Mr. Parrish in May. Until this time she had not even learned that Herb Mayr was no longer operating the service station and that it had been closed down. She spent several months in Fairbanks trying to get additional funds from the First National Bank, as she had none of her own, with which to take care of all of her debts. Shortly before Christmas she left Fairbanks again, without having personally tried to contact Mr. Wurtz.

Late in 1960 the executive vice president of the bank called Mr. Wurtz in Oregon and told him that the bank was ready to lend Virginia Jameson enough money to pay the balance owing on the Jameson contract, if that was satisfactory with him. Wurtz advised his caller to discuss the matter with Mr. Parrish. When approached on the subject by the bank's officer, Mr. Parrish gave the impression that payment would not be accepted and that action would be taken to 'retrieve the property.'

To go back a step in the course of events, when Wurtz withdrew the contract from escrow at the bank, he apprised the defendant Robert Portman, a long time acquaintance of his, of the action he had taken on account of being 'pretty hard pressed for a little cash.' Portman expressed a desire to help Wurtz and said that he would look into the matter of taking over the contract himself. Then, commencing in January of 1961, the following correspondence passed between Wurtz and Portman and from Wurtz to Mr. Parrish relating to the negotiation of a sale of the Wurtz interest in the subject service station to Robert Portman: January 10, 1961. Robert Portman to Winn Wurtz:

'I had quite a talk with Parrish today, and he assured me that he has the title to your property but that doesn't mean that the title is all clear as one of these smart lawyers might still be able to protect thier [sic] clients [sic] lien as after all this woman had paid in a big amount of money, Parrish said that he didn't get a quit claim deed from the woman * * *.

'Did you tell me that the Bank offered to buy your equity for just the amount that you had coming on the old contract or did I just dream this * * * just quote me a figure that you will accept * * *.'

January 17, 1961. W. S. Wurtz to Robert Parrish:

'This will authorize Robert Portman to recieve [sic] from you all the papers, the contract of sale * * * pertaining to Virginia Jameson and the Rite-Way Service Station * * *.'

January 17, 1961. W. S. Wurtz to Robert Portman:

'Received your letter * * *.

'In regards to the First National Bank wanting to buy my equity; there was no price set on it. Bill Strocker called me up and said that they would like to buy my equity but at that time I thot that Parrish was really working for my interests so I told Bill that they would have to deal with Parrish. The contract of sale has a balance of $5,500; plus interest to date brings a total of $6,550.00.

* * *

* * *

'The first deal is no gamble as you will hold first mortgage and would be paid off first if anything happened.

'You would pay me $7,500.00 but I would get a percentage of 33 1/3% after you had recieved [sic] $15,000.00.'

January 24, 1961. Robert Portman to Winn Wurtz:

'* * * I proceed to run a title search on the Station property * * *.

'Tomorrow I am going to try and see Mr. Parrish...