Lawson v. Helmich

• Decision Date: 02 March 1944
• Docket Number: 29189.
• Citation: 146 P.2d 537,20 Wn.2d 167
• Parties: LAWSON v. HELMICH et al.
• Court: Washington Supreme Court

146 P.2d 537

20 Wn.2d 167

LAWSON v. HELMICH et al.

No. 29189.

Supreme Court of Washington

March 2, 1944

Department 1.

Action by H. C. Lawson against Herman Helmich and another to recover damages for willful trespass by defendants upon plaintiff's orchard which at time of trespass plaintiff held as purchaser under an executory real estate contract. From a judgment for defendants notwithstanding a verdict for plaintiff, plaintiff appeals.

Reversed with direction.

Appeal from Superior Court, Yakima County; Robert J. Willis, Judge.

J. P Tonkoff, of Yakima, for appellant.

G. E Clark, of Yakima, for respondents.

JEFFERS Justice.

This action was instituted by H. C. Lawson, who was in possession of a certain ten-acre orchard, as vendee, under an executory real estate contract, against Herman Helmich and Raymond Holmes, to recover damages for an alleged willful trespass by defendants.

Defendants, by their answer, admitted that plaintiff was purchasing the property under contract, and admitted plaintiff's right to possession, but denied any willful trespass on their part, and denied that plaintiff had been damaged by any acts of defendants.

Defendants alleged affirmatively that on or about December 1, 1941 neither plaintiff nor defendants knew where the boundary line between the Helmich property and the land being purchased by plaintiff was located; that at that time Helmich's employee, Raymond Holmes, was engaged in pulling out and cutting up some worthless apple trees on Helmich's property, and at the specific direction and request of plaintiff, Holmes cut about thirty apple trees situated on premises the title to which was then unknown to either plaintiff or defendants. It is further alleged that the thirty apple trees cut by Holmes were worthless.

Plaintiff by his reply, denied the affirmative matter set up in defendants' answer.

The cause came on for hearing Before the court and jury, and thereafter the jury returned a verdict in favor of plaintiff for five hundred dollars. Defendants filed a motion for judgment notwithstanding the verdict, and in the alternative for a new trial. The court granted the motion for judgment notwithstanding the verdict, denied the motion for new trial, and thereafter rendered judgment dismissing plaintiff's action with prejudice. Plaintiff has appealed from the judgment entered.

The only error assigned by appellant is in granting the motion for judgment notwithstanding the verdict.

The jury were entitled to find from the evidence, and apparently, as indicated by their verdict, did find, that on April 8, 1941, appellant entered into an executory real estate contract, containing the usual provisions for forfeiture, with Rose M. Fry, for the purchase of a ten-acre orchard in Yakima county. At that time, and at all times since, the adjoining property on the east was owned by respondent Helmich, and farmed by his employee, respondent Holmes. During the month of December, 1941, Holmes, at the direction of Helmich, cut down three rows of apple trees along the east boundary line of the land being purchased by appellant. At the time Holmes cut these trees, appellant had had no survey definitely establishing the boundary line between the property being purchased by him and the Helmich property. However, the jury undoubtedly found that, as testified by appellant and his father, on October 16, 1941, which was Before any of the trees were cut, appellant, having heard that Holmes was going to cut the trees, went to see Helmich and told him not to cut them, as he was claiming some of them; that Helmich asked appellant if he had had the property surveyed, to which appellant answered no, but that he intended to have it surveyed. There is also testimony to the effect that Holmes had been told where the boundary line was between the places. Appellant denied that he had ever given permission, either to Holmes or Helmich, to cut the trees.

While respondent Helmich and wife denied that on October 16, 1941, appellant had told Helmich not to cut the trees, and while respondents testified that appellant told Holmes to go ahead and cut them, the jury apparently accepted the testimony of appellant, and did not accept that of respondents. It is very evident that the jury did not believe the statements made by respondents, that they had no notice that appellant was claiming the trees Before they were cut, or that they did not know where the boundary line was, when we consider the following special interrogatories submitted to the jury and their answers thereto:

'Interrogatory No. 1. Did the defendants have probable cause to believe that the apple trees they removed from the northwest quarter of the northeast quarter of the southeast quarter of section 31, township 12 north, range 19, E. W. M., Yakima county, Washington, were on land from which they had the legal right to cut said apple trees? Answer: No.

'Interrogatory No. 2. Did the plaintiff authorize defendants to cut two rows of apple trees from the northwest quarter of the northeast quarter of the southeast quarter of section 31, township 12 north, range 19, E. W. M., Yakima county, Washington? Answer: No.

'Interrogatory No. 3. What was the difference in the fair cash value of the property from which said apple trees were cut, Before and immediately after said trees were cut? Answer: 500.00/100.'

In January, 1942, after the trees had been cut, appellant employed a Mr. Hewitt, a civil engineer, to survey his property, and from this survey it appears that respondents had cut three rows of apple trees on the land being purchased by appellant. The trees removed from the Lawson tract covered from one-half to three-fourths of an acre, and there was ample evidence to support the verdict that the property was damaged to the extent of five hundred dollars. The trial court so found, as shown by its memorandum opinion in passing on the motion for a new trial.

The facts further show that after this action was started, respondent Helmich purchased from Rose Fry, vendor, her interest in the contract, and then went to appellant and told him that if he (appellant) was not willing to accept fifty dollars in settlement of the action, respondent would forfeit the contract, appellant at that time being in arrears in his payments. Appellant refused to accept the fifty dollars, and proceeded to borrow sufficient money to pay the entire balance due on his contract, paid the same to Helmich, and received a deed to the property, so that in fact when the case was tried and judgment entered, appellant had full legal title to the premises.

The first question presented is whether or not one in possession of real estate, as vendee under a forfeitable executory contract, may bring an action to recover damages to the land against a third person who has caused the damage.

The theory of the trial court, as shown by its memorandum opinion, was, and the theory of respondents is, that under the case of Ashford v. Reese, 132 Wash. 649, 233 P. 29, and other cases, we have held that a vendee under a forfeitable executory contract has no title or interest in the property, either legal or equitable; that under the case last cited, and Schaefer v. E. F. Gregory Co., 112 Wash. 408, 192 P. 968, Johnson v. Stalcup, 176 Wash. 153, 28 P.2d 279, and Capital Savings & Loan Ass'n v. Convey, 175 Wash. 224, 27 P.2d 136, we have held that as between vendor and vendee, the loss resulting from damage to property, such as the removal of trees in the instant case, must fall on the vendor; that if as between the vendor and vendee the vendor is the one who suffers the injury, then he is the one who must maintain the action against the third party to recover damages; that a vendee's remedy in such a case as this is not against the third party who committed the wrong, but is against the vendor under the contract for a rescision and recovery of payments 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 credit against the balance due on the contract where the loss is relatively small (Capital Savings & Loan Ass'n v. Convey, supra).

It is appellant's contention that trespass is a possessory action, and that he, as a vendee in possession, had such rights under the contract as to entitle him to bring this action.

There is no question as to what the decisions in Ashford v. Reese, supra, and the other cited cases hold, and no discussion of these cases would be of value here. However, in none of them was the question presented which is Before us now, but based upon those decisions, respondents contend that the only right a vendee has in a case such as this is a personal right against his vendor.

Without attempting to say just what the effect of our decisions rendered subsequent to Ashford v. Reese, supra, in so far as the questions therein involved are concerned, may be, we are satisfied that in subsequent decisions we have committed ourselves to the rule that the vendee under a forfeitable executory contract has a right in the land, which, coupled with possession, is sufficient to entitle him to bring an action for damages for injury to the land cause by removal of trees, as in the instant case.

The case of State ex rel. Oatey Orchard Co. v. Superior Court, 154 Wash. 10, 280 P. 350, does not present a factual situation such as is present in the instant case, but it is of interest on the question of the vendee's rights under a forfeitable executory contract. In the cited case an attempt was made to attach the interest of William and George Joseph, vendees under an executory contract. At the time the attachment was levied, the Josephs had paid some forty thousand dollars on...