McDougall v. O'Connell

• Decision Date: 04 March 1913
• Court: Washington Supreme Court
• Parties: McDOUGALL v. O'CONNELL et ux.

130 P. 362

72 Wash. 349

McDOUGALL v. O'CONNELL et ux.

Supreme Court of Washington

March 4, 1913

Department 2. Appeal from Superior Court, King County; H. A. P. Myers Judge.

Action by Malcolm McDougall against W. L. O'Connell and wife. From a judgment for defendants, plaintiff appeals. Reversed and remanded, with directions to enter judgment for plaintiff.

Benton Embree, of Seattle, for appellant.

F. C Reagan, of Seattle, for respondents.

Wilson R. Gay, Geo. Olson, and Milo A. Root, all of Seattle, amici curiae.

MAIN, J.

This is an action to recover money alleged to be due upon a contract. On May 20, 1908, at Seattle, Wash., the defendant W. L O'Connell executed and delivered to the plaintiff a writing in terms as follows: 'If Mr. McDougall is dissatisfied with the property I have sold him in Camp O'Connell, Elk county, Nevada, at the end of three years he keeping up his share of the assessment work, I agree to return him the amount he has paid for it, $2,500, with 10 per cent. interest. W. L. O'Connell.' Some time prior to this date the parties had had certain negotiations, looking to the sale to the plaintiff by W. L. O'Connell of an undivided one-fourth interest in certain mining claims situated in Elk county, Nev. On July 28, 1908, the plaintiff pursuant to the agreement to purchase, paid $1,000, and on the 4th day of August, 1909, $1,500. At the time of the latter payment, $300 was paid for the assessment work for the year 1909. All these sums were paid to W. L. O'Connell. When the last payment on the purchase price was made, deeds were delivered to the plaintiff, conveying the interest purchased in the mining claims, which deeds were executed by John O'Connell, the brother of W. L., in whose name the filings upon the claims had been made. On November 14, 1910, the plaintiff paid his proportion of the assessment work for that year. On May 5, 1911, W. L. O'Connell and one Cameron departed on a trip to the interior of Alaska, expecting not to return until either the month of August or September following. McDougall, the plaintiff, knew of their departure and the time of their expected return. During the time that they were in Alaska, they were at a place where there was no regular mail delivery; but upon two occasions while there mail was brought in by parties coming from the outside.

The trial court found, and there seems to be no real controversy upon this question, that the three-year limitation provided for in the contract expired on May 20, 1911, at 12 o'clock midnight. The following day being Sunday, on Monday, May 22, 1911, John O'Connell was requested to come to the office of the attorney for McDougall, and he was there informed that McDougall was disatisfied with the mining claims and desired the return of his money under the terms of the agreement. On July 22, 1911, the plaintiff, knowing the time when W. L. O'Connell was expected to return from Alaska, caused to be sent to him by registered mail addressed to his Seattle residence a notice of dissatisfaction and demand for the return of the purchase price, together with interest.

O'Connell arrived in Seattle on his return from Alaska, August 6, 1911, and on August 22d he appeared at McDougall's office, after having received the notice of dissatisfaction by registered mail. During all of the times above mentioned, W. L. O'Connell's residence was at a place in Seattle known to McDougall, and his family were at the residence during the period of time that O'Connell was in Alaska. As has been stated, the three years mentioned in the contract, at the end of which time McDougall might demand the return of his money, expired on May 20, 1911. McDougall did not pay his proportion of the assessment work for the year 1911, which would have amounted to the sum of $300. The assessment work upon the claims for this year was not in fact done, and on the 1st of the following January they were relocated by adverse parties. McDougall's demand for the return of his money was not respondent to by O'Connell, and this suit was brought to recover the same. The cause was tried to the court without a jury. At the conclusion of the trial the court found for the defendants, apparently on the ground that McDougall did not within a reasonable time after May 20, 1911, notify W. L. O'Connell of his dissatisfaction. Thereupon the plaintiff appealed.

The questions presented upon this appeal are: (1) Was the notice of dissatisfaction communicated to W. L. O'Connell in time? (2) Must the appellant show reasonable grounds for his dissatisfaction? (3) Did the appellant forfeit his right to declare dissatisfaction by failing to meet his proportion of the assessment work for the year 1911?

The first question presented requires the interpretation of the clause 'at the end of three years,' as used in the contract. Under this provision the appellant could not have declared his dissatisfaction prior to the expiration of the three years mentioned, for the contract specifies otherwise. Contracts with like or similar language have been frequently construed by courts of last resort to mean that notice of dissatisfaction or demand for the return of money must be made within a reasonable time after the expiration of the time stated. 'At the end of three years,' in contracts of this character, means within a reasonable time thereafter. Rogers v. Burr, 97 Ga. 10, 25 S.E. 339; Ladow v. E. Bement & Sons, 119 Mich. 685, 79 N.W 1048, 45 L. R. A. 479. In the Rogers Case the question is covered by this language: 'This contract, on the faith of which the administrator of Chambers...