Martin v. Seigel, 31097.

• Decision Date: 09 December 1949
• Docket Number: 31097.
• Citation: 35 Wn.2d 223,212 P.2d 107
• Court: Washington Supreme Court
• Parties: MARTIN v. SEIGEL ex ux.

212 P.2d 107

35 Wn.2d 223

MARTIN v. SEIGEL ex ux.

No. 31097.

Supreme Court of Washington, En Banc.

December 9, 1949

As Corrected Jan. 12, 1950.

Lois M Martin sued Karl Seigel and Jeanne Seigel, his wife, for specific performance of a contract to sell real property.

A decree dismissing the action was entered by the Superior Court, King County, William J. Wilkins, J., and the plaintiff appealed.

The Supreme Court, Schwellenbach, J., affirmed the decree on ground that earnest money agreement relied upon was unenforcible as within the statute of frauds because of failure to certain sufficient legal description of property to be conveyed.

H. E Foster, Seattle, for appellant.

Wright and Wright, Seattle, for respondents.

SCHWELLENBACH, Justice.

This is an appeal from a decree dismissing an action for specific performance of a contract to sell real property.

On March 2, 1948, respondents listed their property for sale with Frank L. McGuire, Inc. The listing agreement described the property as:

1 Addition City of Seattle,

N 10' 32 King County

Pontius Washington

Lot Blk. 2nd.

The address was given as 309 E. Mercer.

On June 24, 1948, the following Earnest Money Agreement was entered into. It was upon a printed form, and we italicize those portions which were written.

'Seattle Washington June 24, 1948

'Received From Lois M. Martin (widow) the sum of $1,000.00 Dollars as party payment on this his (her) agreement to purchase from Frank L. McGuire, Inc., Agent for owner, the following real property: at 309 E. Mercer and furniture as per inventory in the City of Seattle County of King, State of Washington, at the agreed price of $18,500 Dollars, the balance of the down payment to be paid as follows: $1500.00 including earnest money Dollars within ten (10) days of the time when seller shall furnish an abstract brought to date or title insurance policy showing marketable title, and the remainder of said purchase price to be paid as follows: $150.00 per month or more including 5% interest for one year. $200.00 or more per month including 5% interest thereafter until paid.

'In event the title furnished shall not prove marketable after examination by purchaser, the owner shall have thirty (30) days after notice of defects in writing in which to cure said defects in same. In event the purchaser shall fail to make payments herein provided within ten (10) days after furnishing marketable title and notice that deal is ready to close, the deposit will be forfeited as liquidated damages.

'In event the property is not delivered free from encumbrances, excepting zoning ordinances, building restrictions, excepting present mortgage of about $5,800--This deal is contingent upon purchaser being able to get satisfactory licenses from city by good and sufficient Deed (Contract of Sale) the above deposit of $1000.00 shall be returned to said purchaser. 'Taxes and fire insurance premiums to be pro-rated as of date of sale.

'This property is sold on the basis of the contract between Frank L. McGuire, Inc., and the owner and not on any verbal statement made by the agent, and all such statements and representations not covered by this receipt are hereby waived.

'Purchaser to have possession on or Before ten (10) days after deal is closed.

'This deposit taken subject to owner's approval, and broker shall have five (5) days in which to obtain said approval.

Frank L. McGuire, Inc., Agent

' Lois M. Martin [signed]

Purchaser.

By G. W. Dunn [signed]

Salesman

'I hereby approve this sale, accept the price and agree to the terms herein and agree to pay Frank L. McGuire, Inc., my agent, $5% commission for making above sale. I hereby authorize my said agent to give tenants legal notice to vacate premises.

'Dated this ___ day of ___ 19__

' Karl Seigel [signed] Owner

' Jeanne Seigel [signed] Owner'.

On August 5, 1948 a policy of title insurance was furnished, which described the property:

'In The County of King, State of Washington

'Lot one (1) and north 10 feet of lot two (2), block thirty-two (32), Supplementary Plat of Pontius Second Addition to Seattle, according to plat thereof recorded in volume 5 of plats, page 76, records of said county.'

This is the correct legal description.

The trial court made Finding No. 8:

'That the earnest money receipt, Exhibit 3, is not a sufficient memorandum to satisfy the Statute of Frauds, nor does it incorporate by reference any other instrument, either Exhibit 1 or otherwise, that does contain an adequate legal description sufficient to satisfy the Statute of Frauds; that parol evidence would have to be resorted to, to connect the real estate described in the plaintiff's complaint with that described in Exhibit 1 and Exhibit 3, and that therefore the Exhibit 3 is void and not enforceable;'

The general rule with regard to the sufficiency of legal descriptions to satisfy the statute of frauds in contracts for the sale of real property is stated in 49 Am.Jur. 658, Statute of Frauds, § 349:

'* * * In general, a description of the property in a contract for the sale of real estate may be sufficient to satisfy the statute of frauds even though it is not in such particulars as to render unnecessary a resort to extrinsic evidence to apply the description to the subject matter; the description is considered sufficient if with the assistance of external evidence it can be applied to the property intended to the exclusion of all other property. It follows that evidence of extrinsic circumstances is admissible within limitations in aid of a description the words of which standing alone would not identify the subject matter of the contract positively. A writing relied upon to constitute the memorandum must in and of itself furnish the evidence that the minds of the parties met as to the particular property which the one proposed to sell and the other agreed to buy; when such evidence is not found in the writing, it cannot be supplied by parol, but if it is found there, parol evidence of extrinsic circumstances may be resorted to for the purpose of specifically designating the property to which both parties are shown to have referred by the terms of the writing.'

In 37 C.J.S., Frauds, Statute of, § 188, p. 674, we find the following: 'In transactions affecting urban property a description of the property by street and number is a sufficient description where the city or town in which it is located is stated either in the caption or the body of the instrument or may be ascertained from the writing. Ordinarily, however, an ommission is located renders the description insufficient located renders the description insufficient where it contains nothing from which the omitted statement may be inferred.'

In Broadway Hospital & Sanitarium v. Decker, 47 Wash 586, 92 P. 445, 446, we affirmed a judgment dismissing an action for specific performance, where the memorandum described the property to be sold as: 'House No. 322 Broadway', because the writing did not show the state, county, or city where the property might be found. See also, West v. Cave, 98 Wash. 237, 167 P. 747, where the property was described as the 'J. T. Arrasmith place.' Rogers v. Lippy, 99 Wash. 312, 169 P. 858, L.R.A.1918C, 583, where the writing stated: 'my stock ranch located in sections 9, 17 and 21, township 3 south, range 13 east, Sweetgrass county, Mont.' Nelson v. Davis, 102 Wash. 313, 172 P. 1178, 1179, 'One lot...