Kaufmann v. Woodard, 29748.

• Decision Date: 23 November 1945
• Docket Number: 29748.
• Citation: 24 Wn.2d 264,163 P.2d 606
• Parties: KAUFMANN v. WOODARD et ux.
• Court: Washington Supreme Court

163 P.2d 606

24 Wn.2d 264

KAUFMANN v. WOODARD et ux.

No. 29748.

Supreme Court of Washington

November 23, 1945

Department 2.

Action by Minnie Kaufmann, a spinster, against Paul D. Woodard and wife for reformation of a combined assignment of a contract to sell real estate and a deed to property which defendants had executed and delivered to her, or in the alternative relieving plaintiff from obligation to convey part of property covered by the contract when contract was fully performed. From a decree of reformation for plaintiff defendants appeal.

Affirmed.

Appeal from Superior Court, King County; Hugh Todd, Judge.

Monheimer Schermer & Mifflin, of Seattle, for appellants.

C. H Steffen and Andrew J. Balliet, both of Seattle, for respondent.

GRADY Justice.

This action was brought by Minnie Kaufmann against Paul D. Woodard and wife to secure a decree of the court reforming a combined assignment of a contract to sell real estate and a deed to the property which they had executed and delivered to her, or in the alternative, relieving her from the obligation to convey a part of the property covered by the contract to the one entitled thereto when the contract was fully performed. The case was tried Before the court, findings of fact were made and a decree was entered reforming the instrument so as to include therein additional property to that described and directing the defendants to execute and deliver to plaintiff a new one accordingly. The defendants have taken an appeal from the decree.

We find from an examination of the record the following to be the facts of the case: Prior to March 22, 1944, and for over a period of about five years respondent had loaned money to appellants with which to finance building operations on property acquired by them, and such loans were secured by real estate mortgages. The business part of their transactions, including the preparation of necessary legal documents, was attended to by Mr. Woodard, and as a result of their satisfactory performance respondent reposed much confidence in appellants. Appellants were the owners of lots 6, 7 and 8 of block 7, Hainsworth's Fauntleroy Grove Addition to Seattle. Respondent held mortgages on various tracts of land owned by appellants, which on March 22, 1944, aggregated the sum of $12,500. On September 25, 1943, appellants contracted to sell the east half of lot 7 and all of lot 8 to William E. Barnett and wife for the sum of $8,500, of which $1,100 was paid in cash and as a part of the purchase price they assumed and agreed to pay two mortgages on lot 8 held by respondent aggregating $3,500. The balance was payable in monthly installments. On September 29, 1943, appellants gave a mortgage to respondent securing the sum of $4,500 covering lot 8. It does not appear whether she released the two mortgages assumed by Barnett, but if she did so she was in this position: She had increased her loan on lot 8 by $1,000 and held a mortgage on it in the sum of $4,500, which was subsequent and subject to the contract of purchase held by Barnett, and which Barnett had not expressly assumed. About March 22, 1944, dissatisfaction had arisen as to the payments on some of the mortgages and a refinancing arrangement was made whereby respondent agreed to release her mortgages and receive in lieu thereof assignments of outstanding real estate contracts held by appellants as vendors, among which was the contract of sale to Barnett and wife covering the east half of lot 7 and lot 8. The total amount of money owing on the various contracts exceeded the amount of the total mortgage indebtedness by $305.80, which amount respondent paid to appellants. An instrument constituting a combined assignment of the Barnett contract and a deed was prepared by Mrs. Barnett, and for the description of the land involved she used the description contained in the mortgage which covered lot 8 only, although the contract being assigned covered the east half of lot 7 also. The assignment part contained no exception. There was an omission from the description. Respondent executed releases of the various mortgages.

It is at this juncture that a serious dispute between appellants and respondent appears in the testimony. The version of the transaction given by appellant Woodard and by the notary public who took the acknowledgments of the parties executing the assignment-deed and release of the mortgage covering lot 8 was to the effect that the instruments were signed by the parties in the office of the notary and in his presence, and that they acknowledged their execution Before him; and that when the assignment-deed was presented to respondent for inspection and approval she looked it over and remarked that the description did not include the east half of lot 7, and upon inquiry as to why it was omitted appellant Woodard explained to her it had been theretofore deeded to Barnett. Mrs. Woodard did not testify at the trial.

The version of respondent was that she went to the home of appellants to close the transaction because they had declined to do business with her attorney and the assignment-deed was delivered to her there. She, at first, stated that as she had signed the release of the mortgage and it was acknowledged she did so at the office of the notary. On further reflection she stated she did not go to the office of the notary on the occasion of that transaction, although she had signed other papers there prior to that event, but as he knew her signature she signed the release and appellants took it that way. She denied any conversation with appellants about the omission of the east half of lot 7 as testified to by them, and stated she did not learn of the omission until several months after the transaction was closed. The testimony of respondent being so at variance with that given by the notary when he later was a witness, counsel for respondent subjected him to a searching cross-examination, and the trial judge also questioned him closely with the result that it lost much of its force.

On January 14, 1944, appellants conveyed the east half of lot 7 to Barnett and some time later the latter reconveyed that property to them. It does not appear that any consideration moved to Barnett although he had paid $1,100 on his contract at the time of its execution. The appellants assert the Barnett deed was executed after the assignment-deed of March 22, 1944. The respondent asserts in her brief it was executed March 14, 1944, and recorded June 16, 1944, and that Barnett recorded his deed from appellants March 24, 1944. The trial court found the Barnett deed was given on March 14, 1944. The date of this deed would be important because if the east half of lot 7 had been reconveyed to appellants Before the assignment-deed was given it would materially affect the weight to be given to the testimony of appellant Woodard to the effect that he told respondent it was not included in the assignment-deed as it had been...