Johnson v. Puget Mill Co.

• Decision Date: 03 May 1902
• Citation: 28 Wash. 515,68 P. 867
• Parties: JOHNSON v. PUGET MILL CO.
• Court: Washington Supreme Court

68 P. 867

28 Wash. 515

JOHNSON v. PUGET MILL CO.

Supreme Court of Washington

May 3, 1902

Appeal from superior court, King county; G. Meade Emory, Judge.

Action by Anne M. Johnson against the Puget Mill Company. Judgment for defendant, and plaintiff appeals. Affirmed.

S. S Langland and W. T. Scott, for appellant.

Struve Allen, Hughes & McMicken, for respondent.

HADLEY J.

On the 18th day of August, 1899, one Peter Johnson died intestate leaving no debts. The appellant in this case survived him as his widow, there being no children of the deceased. The money hreinafter mentioned as having been paid to respondent was the community property of appellant and her deceased husband. In the month of August, 1891, the respondent entered into a verbal contract with appellant's husband, the said Peter Johnson, whereby respondent agreed to sell and convey to appellant's husband certain real estate in Jefferson county, Wash. It appears from the pleadings, as agreed upon at the trial, that the purchase price agreed to be paid was $2,000; that $350 of said sum was to be paid at the date of said agreement, $1,200 on the delivery of a deed in the month of November following, and the balance was to be payable in two notes of equal amount, due in one and two years, respectively, after date of the deed, with interest at 8 per cent. per annum; the notes to be secured by mortgage upon the premises so conveyed. At the time of making said agreement, appellant's husband paid respondent the sum of $350 cash. Appellant brought this action to recover from respondent the said sum of $350, with interest thereon from the date of the payment aforesaid. Appellant alleges that in December, 1899, respondent notified her that it considered itself no longer bound by said agreement; that upon demand, respondent refused to refund said money; and that it holds the same for the benefit of appellant. It is further alleged that at all times the respondent had no title to said land, but that the same was and is a military reservation owned by the United States. The making of the contract is admitted, and also the fact that the $350 was paid at the same time, but the averment that respondent had no title to the land is denied. It is further affirmatively alleged by way of answer that after the payment aforesaid the said Johnson, during his lifetime, wholly neglected and refused to pay the said $1,200, or any part thereof, or anything further on account of said purchase price of $2,000, and failed in each and every particular to comply with the remaining terms of said contract. It is also alleged that it was a part of said agreement that the said Johnson should wholly forfeit the said $350 in the event he did not perform said contract of purchase, in making payment of the balance of the agreed purchase price according to the terms aforesaid. It is further alleged that respondent has at all times performed all the terms of said contract upon its part to be performed, and has at all times been ready and willing, and is now ready and willing, to make conveyance of a full and perfect title to said premises to appellant whenever she shall pay or cause to be paid to respondent the balance of said purchase price, with interest thereon. It is also alleged that, after the time for payment under said contract had expired, the said Johnson notified respondent that he had elected to abandon said contract, and that he did abandon possession of said premises, and refused to further perform said contract. The statute of limitations is also interposed as a defense to the action. The cause was tried by the court without a jury, a jury being waived. The court made findings of fact, and entered conclusions of law to the effect that no cause of action exists for the recovery sought, and, further, that any cause of action in the premises is barred by the statute of limitations. A motion for new trial was overruled, and judgment was thereupon entered dismissing the action, with costs taxed to the plaintiff. From said judgment, plaintiff appeals.

It is assigned as error that the court concluded, as a matter of law, that no cause of action exists for the recovery sought in the complaint, and also that any cause of action in the premises is barred by the statute of limitations. The court found that the allegation of the complaint that the respondent was without title to the lands, but that the same were owned by the United States government, was not proven and that there was no evidence to support such allegation. It was further found that at the time said contract was made, and ever since, the respondent was and is the owner in fee simple of said premises. It was further found that neither the deceased, Johnson, nor any one in his behalf, ever paid or offered to pay any further part of said purchase price after the payment of said $350. These findings are fully supported by the testimony. From a reading of the complaint it would appear that appellant based her right of recovery upon the theory that respondent was not the owner of the premises sold, and that it for that reason could not perform its part of the contract by the conveyance of good title, from which it would follow that no obligation rested upon the deceased, Johnson, to make further payments, and that he was entitled to recover what he had already paid by reason of breach of contract on respondent's part. But appellant's counsel, in their brief, say that...