McIntyre v. Johnson

• Decision Date: 13 January 1912
• Citation: 66 Wash. 567,120 P. 92
• Parties: McINTYRE et ux. v. JOHNSON et al.
• Court: Washington Supreme Court

120 P. 92

66 Wash. 567

McINTYRE et ux. v. JOHNSON et al.

Supreme Court of Washington

January 13, 1912

Department 2. Appeal from Superior Court, Spokane County; Wilson R. Gay Judge.

Action by John McIntyre and wife against Cora D. Johnson, R. D Johnson and George Bedtelyon. From a judgment for defendants plaintiffs appeal. Affirmed in part and reversed and remanded in part.

D. R. Glasgow, for appellants.

John C. Kleber, for respondents.

MORRIS, J.

On September 19, 1910, respondents Johnson held a contract for the purchase of certain lands in Spokane county. Being unable to meet the payments then due and to become due, they arranged with respondent Bedtelyon, to whom they were indebted for certain services in plainting and caring for an orchard on the land, to procure a purchaser for their contract at such a price as would reimburse them for the payments they had made, and pay Bedtelyon the money due him allowing Bedtelyon to retain for his services in procuring such purchaser any sum he might obtain in excess of the amounts then owing. Bedtelyon approached appellants in regard to a purchase of the contract, offering it to them at a price of $450 an acre, which would make the purchase price to appellants $6,750, which sum was finally agreed upon. It was then agreed that appellants should pay $3,750 in cash to Bedtelyon, out of which he would pay all outstanding claims against the lands, except a $3,000 note due the following January, which appellants assumed, making the $6,750 agreed upon as the price of the land. In order that there may be a clear understanding of what the agreement was in regard to the price to be paid, we quote from the testimony of Bedtelyon which in our judgment establishes the merits of the controversy contrary to the holding of the court below in dismissing the action. This testimony is the most favorable in support of respondents' contention, and they should have little cause for complaint if the cause of action against them is established out of their own mouths. This testimony was as follows: 'I told Mr. McIntyre that I would clean up everything but the $3,000 note, if he wished to buy it, and turn over a clear title, his assignment of contract and everything except the $3,000 note that was not due, so that everything past due would be paid up, and all there was coming up would be the $3,000 note coming due in January. Q. Then the purchase price was $6,750? A. $450 an acre; yes, sir. Q. And he was to get everything clear except the $3,000 note? A. Nothing said about the $3,000. I said I would clear up everything against the contract. Those are the words we used, except the $3,000 note due in January.' There can be little doubt from this testimony but that, as contended by appellants, the entire purchase price of the land to be paid by them was $6,750, and that out of the cash payment of $3,750 Bedtelyon agreed to pay all sums due upon the contract except $3,000, which was the only payment to be assumed by appellants. Upon this understanding appellants paid Bedtelyon $3,750, and obtained an assignment of the contract. Bedtelyon paid all claims against the land, and took up the two notes then due, but failed to pay $533 interest then due upon the $3,000 note which appellants subsequently paid to protect the contract, and brought this action against the Johnsons and Bedtelyon to recover the amount from them, basing the right of action upon the contract with Bedtelyon. The action was dismissed by the court upon the theory that the action was based upon fraud, but that neither the complaint nor the proof established such an action, and that appellants could recover only upon tendering back...