Johnson v. Stalcup
| Decision Date | 11 January 1934 |
| Docket Number | 24810. |
| Citation | 176 Wash. 153,28 P.2d 279 |
| Parties | JOHNSON v. STALCUP et ux. |
| Court | Washington Supreme Court |
Department 2.
Appeal from Superior Court, Pacific County; H. W. B. Hewen, Judge.
Action by Roy F. Johnson against G. W. Stalcup and Lucy Stalcup husband and wife. From a judgment for plaintiff, defendants appeal.
Judgment modified, and cause remanded, with directions.
John I O'Phelan, of Raymond, and E. W. Mathewson, of South Bend for appellants.
Fred M Bond, of South Bend, for respondent.
July 11, 1929, the plaintiff and defendant entered into a contract, whereby defendant agreed to sell and plaintiff agreed to buy certain lots in South Bend, upon which was situated a dwelling house. On December 22, 1932 (and Before the contract had been consummated), the dwelling house, which comprised the major portion of the value of the property, was destroyed by fire. The plaintiff brought this action to rescind the contract for failure of consideration. From a judgment for plaintiff, defendant appeals.
That rescission lies in such cases is not questioned. Ashford v. Reese, 132 Wash. 649, 233 P. 29; Capital Savings & Loan Ass'n v. Convey (Wash.) 27 P.2d 136; Libman v. Levenson, 236 Mass. 221, 128 N.E. 13, 22 A. L. R. 560, note page 575.
The appellants contend that the rule is not applicable here, because they offered to rebuild and restore the dwelling. As to the effect, as a matter of law, of such an offer by a vendor upon a vendee's right to rescind, we are not here concerned. The trial court found, as a matter of fact, that no such unqualified offer was made. The evidence, in our opinion, would not support a finding to the contrary.
The real question in the case is the extent to which the vendor may offset the rental value of the property against the amount recoverable by the vendee. The total amount of respondent's recovery was $758.71, of which approximately $120 was on account of interest on sums paid under the contract. The rental value of the property during the period it was in the possession of, and occupied by, the vendee, was approximately $600. The court, however, allowed this as an offset against interest only. Appellant contends that the entire amount of the rental value should have been offset against the principal, as well as the interest on the amount recovered by respondent.
It is contended by respondent, however, that the question is not an open one in this state. We are undoubtedly committed to the rule that, where rescission lies at the instance of the vendee, because of fraud or misrepresentation on the part of the vendor inducing the contract, the vendor cannot, offset the rental value of the property against the amount recoverable by the vendee. Yarnall v. Knickerbocker Co., 120 Wash. 205, 206 P. 936. Nor can the rental value be offset where the title of the vendor wholly fails. Lawson v. Vernon, 38 Wash. 422, 80 P. 559, Crawford v. Smith, 127 Wash. 77, 219 P. 855.
But where the title of the vendor fails to only a portion of the property, the amount of the rental value can be offset against interest recoverable by the vendee. Ankeny v. Clark, 1 Wash. 549, 20 P. 583; Empey v. Northwestern & Pacific Hypotheekbank, 129 Wash. 392, 225 P. 226. It is upon authority of these cases that respondent seeks to sustain the judgment of the trial court. It must be admitted there is general language contained in both cases that gives ground for respondent's position. However, in determining whether the general language, used in support of the rule there applied, should be extended beyond the issues to which it was applied in those cases, we must consider the reason...
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Lawson v. Helmich
...made, if the loss is susbtantial in relation to the size of the contract (Schaefer v. E. F. Gregory Co., Ashford v. Reese, and Johnson v. Stalcup, supra), or for a against the balance due on the contract where the loss is relatively small (Capital Savings & Loan Ass'n v. Convey, supra). It ......
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Thompson v. Huston
... ... so in the present instance.' ... As we ... said in the case of Johnson v. Stalcup, 176 Wash ... 153, 28 P.2d 279, the rule that the offset of the use of the ... property may be allowed only against the ... ...
- Wilson v. Angelo, 24766.
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Frisell v. Newman
...the rental value of the property may be allowed as a set-off or credit if there was evidence to establish that value. Johnson v. Stalcup, 176 Wash. 153, 28 P.2d 279 (1934); Thompson v. Huston, 17 Wash.2d 457, 135 P.2d 834 (1943). However, we find nothing in the evidence to indicate the rent......
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§22.3 - The Vendor-Vendee Relationship
...to the buyer. Bean v. Hallett, 40 Wn.2d 70, 240 P.2d 931 (1952); Rummer v. Throop, 38 Wn.2d 624, 231 P.2d 313 (1951); Johnson v. Stalcup, 176 Wash. 153, 28 P.2d 279 (1934). The rule applies regardless of which party brings the rescission action. The seller may offset a fair rental value eve......
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Table of Cases
...65 Wash. 261, 118 P. 21 (1911): 20.5(1)(b), 20.5(2) Johnson v. Norman, 98 Wash. 331, 167 P. 923 (1917): 17.11(3)(a) Johnson v. Stalcup, 176 Wash. 153, 28 P.2d 279 (1934): 16.2(1), 22.3(1)(b)(vi) Johnson v. Wheeler, 41 Wn.2d 246, 248 P.2d 558 (1952): 5.5(8), 5.5(9), 6.7 Johnson v. Zufeldt, 5......
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§16.2 - Negotiating Insurance Provisions in Real Estate Transactions
...generally is required to bear the risk of loss for damage to real property subject to a purchase and sale agreement. Johnson v. Stalcup, 176 Wash. 153, 28 P.2d 279 (1934); Capital Sav. & Loan Ass'n v. Convey, 175 Wash. 224, 27 P.2d 136 (1933). In fact, most purchase and sale agreements incl......