Jones v. Grove

• Decision Date: 10 October 1913
• Citation: 135 P. 488,76 Wash. 19
• Parties: JONES et al. v. GROVE et ux.
• Court: Washington Supreme Court

135 P. 488

76 Wash. 19

JONES et al. v. GROVE et ux.

Supreme Court of Washington

October 10, 1913

Department 2. Appeal from Superior Court, King County; King Dykeman Judge.

Action by Elizabeth Jones and another against Richard M. Grove and wife, who counterclaim. From a judgment denying both parties relief, defendants appeal. Reversed and remanded, with directions.

John W Roberts and Geo. L. Spirk, both of Seattle, for appellants.

Fred L Rice and O. A. Tucker, both of Seattle, for respondents.

MAIN J.

The purpose of this action on the part of the plaintiffs was to have declared void, pursuant to their prior notice of rescission, a contract for the sale of real estate, and to quiet the title, and on the part of the defendants to recover by way of cross-complaint certain sums which had been paid to the plaintiffs upon the contract and for taxes.

On November 7, 1910, the plaintiffs and the defendant Richard M Grove executed a written contract, wherein the plaintiffs agreed to sell and convey to Richard M. Grove, and he agreed to buy, certain real estate therein particularly described. The contract, in substance, so far as material here, further provided: The agreed purchase price was $12,000, of which $3,000 had been paid by Grove when the contract was executed, and he agreed to pay $3,000 on or before two years, and $6,000 on or before four years from the date of the contract, with interest thereon at 6 per cent. per annum, payable semiannually. It was specified that 'time is one of the essentials of this contract.' The contract contained no forfeiture clause. Neither was there any provision with regard to the payment of taxes. Thereafter on March 14, 1911, Grove paid the taxes amounting to $122.31; on May 8, 1911, interest on deferred payments, $270; and on November 6, 1911, interest on deferred payments, $270. On the latter date the total amount which had been paid by Grove upon the contract, including taxes, was $3,662.31. On June 26, 1912, the semiannual interest which became due on May 7, 1912, amounting to $270, not having been paid by Grove, the plaintiffs served upon him a notice which in substance stated that, he having made default in the terms of the contract by failing and refusing to pay the sum of $270 interest, and having failed to pay the taxes for the year 1911, permitting the same to become delinquent, they 'elected to declare said contract forfeited, and to rescind the same, and I do hereby so declare said contract forfeited and rescinded.' The contract of sale being of record, the plaintiffs on October 10, 1912, began this action, seeking to have the contract adjudged forfeited and void by reason of the failure of Grove to perform the terms thereof and the titlt to the real estate described therein quieted in them. The defendants answered the complaint, admitting that the plaintiffs had rescinded the contract, and denying that since such rescission they had claimed or asserted any interest in the real estate except to claim a lien for the moneys paid to the plaintiffs and for taxes, as set forth in their cross-complaint, and in their cross-complaint they alleged that the plaintiffs had never tendered to the defendants the sums so paid, and alleged that the amounts so paid, together with interest, amounted to the sum of $4,072.30, which they sought to recover from the plaintiffs. The cross-complaint of the defendants was not responded to by appropriate pleading. Thereafter the cause came on for trial before the court without a jury. As a part of the evidence, a stipulation was received which in substance provided that Grove had made the payments to the plaintiffs and for taxes as pleaded and set forth in the answer and cross-complaint, and that they had not repaid the same or any part thereof to the defendants, nor had they...