Manvell v. Weaver

• Decision Date: 07 June 1909
• Parties: MANVELL v. WEAVER.
• Court: Washington Supreme Court

102 P. 36

53 Wash. 408

MANVELL v. WEAVER.

Supreme Court of Washington, En Banc.

June 7, 1909

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by H. G. Manvell against W. H. Weaver. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Sauter & Sheldon and Keenan & Hardinger, for appellant.

Aust &amp Terhune, for respondent.

CROW J.

On February 25, 1907, the defendant, W. H. Weaver, owner of a restaurant in the city of Seattle, agreed to sell the same to the plaintiff, H. G. Manvell. It was located in the Arcade building, to which building the owner, the Moore Investment Company, was then constructing an annex. A written memorandum of sale was entered into between plaintiff and defendant, the material portions of which read as follows: 'Seattle Wash., Feb. 25, 1907. This is to certify that Latsch & Barth acting as agents for both buyer and seller, have this day received from H. G. Manvell the sum of two hundred dollars ($200.00) ad deposit to apply on purchase price of that certain restaurant situated in the basement of the Arcade building, Seattle, Wash. The purchase price of said place to be two thousand dollars cash, payable as follows: This two hundred dollars ($200.00) cash in hand and balance of eighteen hundred dollars ($1,800.00) on or before March 2 1907. * * * It is further understood that Mr. Weaver is to deliver a lease or cause same to be delivered upon that certain vacant storeroom now being completed in the Arcade Annex, together with the basement thereto, which shall be for a period of not less than three (3) years and at a monthly rental of three hundred dollars ($300.00). Said location to be substantially as follows: The main storeroom facing First avenue and directly opposite present Arcade Lunch, and on street level to be 20X100 feet, also a basement under rear of said storeroom and size approximately 50X60 feet. It is further understood that kitchen partition and provision for dumb-waiter shafts, together with all necessary plumbing, sewer connections, piping and wiring shall be done by the landlord without any expense to said H. G. Manvell whatever. It is further understood that, if said Mr. Weaver is unable to deliver or cause to be delivered the lease as specified above, this contract shall be null and void, and all deposit money returned to said H. G. Manvell, without any expense to him whatever. * * *'

It is conceded that possession was not delivered to plaintiff until March 4, 1907, at which time he paid $1,800, the remainder of the purchase price, and the Moore Investment Company executed and delivered to him a lease of the storeroom and basement, which made no reference to the equipment and fixtures to be installed therein. As the annex approached completion, the Moore Investment Company refused to construct, at its expense, any air shafts or ventilating tubes in compliance with chapter 48, p. 77, Sess. Laws 1905, so that the basement might be legally used as a kitchen. Thereupon the plaintiff, who contended that the defendant had violated his contract of sale in failing to procure a lease which carried such equipment with it, elected to cancel the contract and lease and commenced this action to recover the purchase price paid by him, and other damages. In his complaint he pleaded the written contract of sale, and, after making other allegations which need not be stated, further alleged: 'That thereafter, and on or about March 4, 1907, before the said building, including the premises, containing said room and basement leased as aforesaid, was completed, and before the said room and basement had been equipped and constructed for use as a restaurant and kitchen, said defendant persuaded and induced plaintiff to go into possession of the said restaurant which he was then operating in the Arcade building at the same time, assuring plaintiff that the said room and basement as aforesaid would be immediately finished and completed according to the terms of his contract of sale, and, relying upon the promises and representations of said defendant that the said room and basement thereunder would be thus finished and completed immediately, he consented to go into possession of said restaurant. That at the same time and place, and as a further reason for plaintiff's going into possession of said restaurant as aforesaid, said defendant caused to be made by the Moore Investment Company, the owner of said premises, a lease, a copy of which is hereto annexed and marked 'Exhibit B' and made a part of this complaint. That at the time of the execution and delivery of said lease, the said building, including the said room and basement described in said lease as aforesaid, were in the course of construction; but at that time the said room and basement thereunder were not equipped and provided with dumb-waiter shafts from the basement to the dining hall above, nor with the plumbing, sewer connections, piping, nor with any means by which the said kitchen could be ventilated as provided by law. That upon the express statement, promise, and agreement of said defendant that the said room and basement would be equipped as aforesaid, and that the same would be done at once, plaintiff accepted the said lease with the agreement that said lease would not go into full force and effect until the said room and basement thereunder were equipped and finished as aforesaid, and that from the date of such equipment the rent therefor was to begin to accrue; and, relying upon the said promises and representations as aforesaid, said defendant knowing that plaintiff so relied upon and believed the said promises and representations, he, the said plaintiff, paid to said defendant the further sum of $1,800. * * * Plaintiff further alleges that at the time defendant persuaded and induced him to go into possession of said restaurant, and to accept the said lease from the Moore Investment Company, and to pay defendant the said sum of $1,800, the latter well knew that the said Moore Investment Company never intended to finish, complete, and equip the said room and basement thereunder so that the same could be used and occupied for a first-class lunch room, restaurant, and kitchen in connection therewith.'

The defendant, in substance, alleged: That the negotiations between the plaintiff and himself pertaining to the sale ended on February 25, 1907; that the plaintiff paid him the $1,800 remaining due, and entered...