Littlefield v. Bowen

• Decision Date: 15 March 1916
• Docket Number: 13162.
• Citation: 155 P. 1053,90 Wash. 286
• Court: Washington Supreme Court
• Parties: LITTLEFIELD v. BOWEN et ux.

155 P. 1053

90 Wash. 286

LITTLEFIELD v. BOWEN et ux.

No. 13162.

Supreme Court of Washington

March 15, 1916

Department 2. Appeal from Superior Court, King County; John E. Humphries and Kenneth Mackintosh, Judges.

Action by E. E. Littlefield against F. A. Bowen and wife, with affirmative answer and cross-complaint by defendants. Judgment for plaintiff, and defendants appeal. Affirmed.

Byers &amp Byers, of Seattle, for appellants.

Edgar S. Hadley, of Seattle, for respondent.

HOLCOMB J.

Respondent a real estate broker, as first party, one Thorniley and wife as second parties, and appellants as third parties, on September 23, 1914, entered into a written contract, whereby the Thornileys and Bowens agreed to exchange certain properties at certain stipulated valuations, and each of the exchanging parties pay to respondent a certain stipulated commission, the same 'being payable upon the execution of the instruments effecting the exchange.' The 'instruments effecting the exchange' were never executed by both parties to the exchange. The Thornileys claim to have been----

'ready, able, and willing to perform and to have tendered performance to the Bowens, but that performance by them was refused by the Bowens, who also refused performance themselves.'

Respondent brought his suit against appellants in two separate causes of action, upon the theory that they breached the contract and rendered performance impossible by the Thornileys, and that appellants were therefore liable to him both for the commission earned by him from appellants directly upon the agreed promise to pay, and for the commission earned from the Thornileys under the contract because of appellants' breach of the contract. The contest is chiefly over the questions of whether in fact the Thornileys were ready, able, and willing to perform their contract so as to bind appellants, and whether in fact the Thornileys, rather than appellants, breached the contract. Incidentally the rulings of the court upon appellants' demurrer to the complaint and upon respondent's demurrer to the affirmative answer of appellants are urged as erroneous.

The tripartite contract, among other things, provided that each of the parties, of the second part and of the third part, were to furnish to the other an abstract of title covering their respective properties described in the contract, certified to date, allow five days for examination thereof, and to convey each to the other the properties so contracted by good and sufficient warranty deed free and clear of incumbrances of every nature, except certain incumbrances against each which it was agreed the other would assume.

1. Appellants complain of the overruling of their demurrer to the complaint on the grounds that two cause of action were improperly joined, one upon contract, and one upon tort, and that the complaint did not state facts sufficient to constitute a cause of action.

'Plaintiff may unite several causes of action in the same complaint, when they all arise out of * * * the same transaction.' 1 Rem. & Bal. Code, § 296, subd. 8; Harding v. Ostrander R. & Timber Co., 64 Wash. 224, 116 P. 635.

The first ground of demurrer was not good.

It is further urged that, because the contract stipulated that, 'such amounts being payable upon the execution of the instruments effecting the exchange' and the instruments of exchange were not alleged to have been executed, the respondent could not recover, and that therefore the complaint was insufficient. Respondent could not compel appellants to execute the instruments, but alleged that the other contracting parties, the Thornileys, had been and then stood ready, able, and willing to execute their instruments of conveyance, and stood ready to complete the transfer of their properties in accordance with the contract, but that appellants refused such performance and refused to perform their (appellants') contract. In such posture of affairs, under such a contract, the respondent was entitled to recover his agreed compensation, to be paid by both parties, from whichever party refused to perform and rendered performance by the other party to the exchange impossible. The complaint, therefore, was sufficient and the demurrer was properly overruled.

2. Appellants attempted, by affirmative answer and cross-complaint, to claim damages against respondent for the recording of the contract involved herein, alleging that such recording cast a cloud upon their title to their damage in the sum of $500. Demurrer thereto was sustained, and this is alleged as error. There could be no such recovery. No right, claim, lien, or estate in the real estate of appellants described in the recorded contract become actually or colorably established in respondent thereby. That one of the parties to a written contract, voluntarily made by another party to it, sees fit for some reason to procure its recordation in the public records violates no legal rights of the other party. There was no fraud, overreaching, or undue influence alleged or existing to avoid the contract. The demurrer to the affirmative answer and cross-complaint was properly sustained.

3. A deed was offered in evidence, executed by Thorniley and wife to appellant, of the real estate to be transferred by the Thornileys as a tender under the contract. It appears that this deed had no revenue stamps, as provided by the emergency revenue act of Congress of October 29, 1914. Objection was made to the introduction thereof for the reason that it was not competent evidence. We cannot find that the revenue act of Congress cited contains any provision that a deed or other such instrument not bearing the revenue stamps is inadmissible as evidence. The act provides only for a penalty for failure to attach such stamps. In any event the evidence tends to show that the transfer by the Thornileys had been theretofore refused, and it was immaterial whether the Thornileys made any tender of a deed or not under such evidence.

Thorniley, a witness for respondent, while on the witness stand, after reciting a description of the property to be conveyed by him, was asked by counsel for respondent, 'Was that your property?' To this appellants objected, and the court sustained their objection, saying:

'It is incumbent on you, Mr. Hadley, to prove your contention that you were able to convey it. If you had no title, and were not able to convey, you could not recover, so you will have to prove it.'

The witness was then withdrawn from the stand, and it is contended that there was no other evidence or offer of evidence tending to prove that Thorniley had title to the property in question. It is contended also that a witness cannot be permitted to prove ownership by simply stating the fact that he owns property, over the objection of the opposite party. The first contention does not seem to be sustained by the record. While there were some complications concerning the title of Thorniley, there is evidence to the effect that these matters were all matters of adjustment, and that there had been transactions looking to the adjustment of all the matters which had been objected to by counsel for appellants, whereby it was testified by Thorniley and other witnesses that the title was rendered good. A peculiarity of the contract was that, while the contract provided that abstracts should be delivered to and examined by each party, there was no provision in...