Livieratos v. Commonwealth Sec. Co.

• Decision Date: 17 February 1910
• Citation: 106 P. 1125,57 Wash. 376
• Parties: LIVIERATOS v. COMMONWEALTH SECURITY CO.
• Court: Washington Supreme Court

106 P. 1125

57 Wash. 376

LIVIERATOS v. COMMONWEALTH SECURITY CO.

Supreme Court of Washington

February 17, 1910

Department 2. Appeal from Superior Court, King County; J. T. Ronald Judge.

Action by John Livieratos against the Commonwealth Security Company. From a judgment for plaintiff, defendant appeals. Modified.

Douglas, Lane & Douglas, for appellant.

Freudenberg & Heaton, for respondent.

RUDKIN C.J.

The Narrows Land Company, a corporation, is the owner of a large tract of land in Pierce county, platted as Regents Park. A realty company known as Bowes-Irwin Company was formed or incorporated for the purpose of selling the lots contained in this plat. The defendant, Commonwealth Security Company, a corporation, was employed by the Bowes-Irwin Company as sales agent for the city of Seattle and vicinity. One W. H. B Thomas was a sales agent for the defendant company, and was also connected in some way with the Bowes-Irwin Company. On the 18th day of November, 1907, the plaintiff made a deposit of $20 on the purchase price of two lots in the above tract and received a receipt therefor, with the following indorsement on the back, signed by Thomas as manager 'Agreement to return amount paid after six monthly installments to be given to purchaser on execution of contract of sale.' On November 20, 1907, Thomas delivered to the purchaser the following agreement, written on one of the letter heads of the defendant company: 'I hereby agree at the option of John Livieratos, to refund to the said John Livieratos, after six monthly installments have been paid upon lots 24 and 25, Block 1, Regents Park, Pierce county, Washington (provided said installments have been promptly paid as the same fall due), the amount paid by the said John Livieratos on said lots after the said six monthly installments have been paid; the said John Livieratos to transfer all his right, title and interest in and to said lots on payment to him of said sum, and to accept said sum without interest; hereby waiving all profits which might accrue on said lots in the event he exercises the option aforesaid. W. H. B. Thomas, Sales Mgr. Regents Park.' On December 19, 1907, a formal contract of sale was entered into between the Narrows Land Company and the plaintiff for the two lots. By the terms of this contract the purchase price of $2,650 was payable as follows: Two hundred and sixty-five dollars on execution of the contract, and $35 on or before the 19th day of each and every month thereafter, until the full payment of the purchase price, with a declaration of forfeiture in case the purchaser continued in default for more than 60 days after any installment became due. The initial payment of $265 was made as follows: November 18, 1907, $20; November 21, 1907, $112.50; January 4, 1908, $70; January 21, 1908, $62.50. The monthly installment due January 19, 1908, was paid March 19, 1908; the installment due February 19, 1908, was paid April 18, 1908; the installments due March 19, 1908, and April 19, 1908, were paid May 18, 1908, and the installment due May 19, 1908, was paid May 29, 1908. The present action was instituted to recover the amount of these several payments, the complaint alleging the execution of the foregoing contracts, the payment of five monthly installments according to their terms, a tender of the sixth monthly installment in due time, a demand for the return of the several sums paid, and a refusal on the part of the defendant to comply therewith. The material allegations of the complaint were put in issue by the answer, and the cause was tried before the court without a jury. The court found the facts substantially as alleged in the complaint, and gave judgment for the plaintiff. From that judgment the defendant has appealed.

In support of the appeal it is contended, first, that the proof fails to show that the appellant...