King v. Upper

• Decision Date: 26 January 1910
• Citation: 57 Wash. 130,106 P. 612
• Court: Washington Supreme Court
• Parties: KING et ux. v. UPPER.

106 P. 612

57 Wash. 130

KING et ux. v. UPPER.

Supreme Court of Washington

January 26, 1910

Department 1. Appeal from Superior Court, King County; E. E. Hardin Judge.

Action by Frank J. King and wife against Herbert S. Upper. From a judgment for plaintiffs, defendant appeals. Reversed, with directions to dismiss the action.

Shank &amp Smith, for appellant.

Peters & Powell and Marion Edwards, for respondents.

RUDKIN C.J.

Some few days prior to the 20th day of March, 1908, the plaintiff Frank J. King entered into negotiations with the defendant Upper, for the purchase of certain growing timber in King county. It was finally agreed between the parties that, in consideration of the sum of $200, the plaintiffs should have an option to purchase the timber for the sum of $6,000, for the period of 30 days. On the above date the terms of the contract for the sale of the timber were agreed upon, and the parties met at the office of the defendant, Upper, for the purpose of closing the deal. After the contract of sale had been executed and acknowledged, Upper dictated the following to his stenographer, which was afterward transcribed on the envelope in which the timber contract was inclosed: 'National Bank of Commerce, City. Gentlemen: Please deliver the inclosed to Frank J. King on or before April 15th, upon the receipt of $5,800.00. Upon receipt of the above amount place the same to my credit'--and signed the same. The parties then repaired to the bank, and the papers were delivered to the assistant cashier, who noted the following on the envelope containing the timber contract, in the presence of the parties: 'By 3:00 p. m. Apr. 15, 1908, to be returned to Upper'--and at the request of the bank the plaintiff Frank J. King signed his name on the corner of the envelope for identification. The $5,800 was not paid on or before April 15th, at 3 p. m., and the papers were returned to the defendant at the expiration of that period. The present action followed to specifically enforce the contract of sale or escrow agreement, and from a judgment in favor of the plaintiffs the present appeal is prosecuted.

In the consideration of this appeal we must not lose sight of the fact that two contracts are involved: First, the oral contract of sale; and, second, the escrow agreement. Under all the authorities the former will not support an action for specific performance, because the contract was not reduced to writing, and there was no part performance to take the case out of the statute of frauds. If, therefore, we view this as an action to enforce specific performance of the oral contract of sale, the action must fail, and if we view it as an action to enforce specific performance of the escrow agreement, the same result must follow; for we find in the record no proof of any such agreement. The respondent Frank J. King testified that he had no knowledge of the contents of the agreement indorsed on the envelope containing the contract of sale until after the 15th day of April, 1908, and that he did not consent to any such agreement. The...