Milton v. Crawford

• Decision Date: 25 September 1911
• Citation: 118 P. 32,65 Wash. 145
• Parties: MILTON v. CRAWFORD.
• Court: Washington Supreme Court

118 P. 32

65 Wash. 145

MILTON v. CRAWFORD.

Supreme Court of Washington

September 25, 1911

Department 2. Appeal from Superior Court, King County; Robert B Albertson, Judge.

Action by Thomas Milton against B. F. Crawford. Judgment for defendant, and plaintiff appeals. Affirmed.

Richard Saxe Jones, for appellant.

Bogle Merritt & Bogle, for respondent.

ELLIS J.

Action by Thomas Milton against B. F. Crawford to recover $500 earnest money paid upon a contract for the purchase of real estate. From a judgment in favor of defendant, the plaintiff has appealed.

There are some 13 assignments of error, but they are all covered by the first, namely, that the evidence does not justify the findings, the conclusions, and the judgment. It appears from the evidence that on September 11, 1909, a contract was entered into between Milton as purchaser and Crawford as seller, which, omitting caption and signatures, is as follows: 'That the said Thomas Milton agrees to purchase of the said B. F. Crawford, the property known as lot 3 block L, Bell's 5th addition to the city of Seattle; paying for the same the sum of twenty-one thousand, seven hundred sixty and 66/100 dollars, as follows: Five hundred dollars down, subject to approval of abstract, and within fifteen days after abstract is delivered, to assume mortgages held by Charles Stuht amounting to ten thousand five hundred dollars, the balance due on taxes, one hundred and 16/100 dollars; and pay to the said B. F. Crawford the balance, ten thousand seven hundred sixty and 66/100 dollars, in good and lawful money. And the said B. F. Crawford agrees to furnish abstract, to date, for said lot, within ten days, showing title to same, free and clear of all incumbrances, except those above mentioned, and a regrade assessment of three thousand three hundred twenty one and 12/100 dollars, and deliver to said Thomas Milton a warranty deed for said lot. It is mutually understood that the consideration is twenty thousand dollars, to which is added, five hundred dollars for commission, one thousand one hundred sixty and 50/100 dollars to reimburse said B. F. Crawford for an assessment recently paid and one hundred and 16/100 dollars for taxes, making the total consideration twenty-one thousand seven hundred sixty and 66/100 dollars. Also that ten days is to be allowed in which to examine the abstract and if title is not found marketable the five hundred dollar deposit is to be returned.' On September 13, 1909, an abstract was furnished and delivered to Milton's attorney for examination. On September 17, 1909, the attorney rendered an opinion of title, which, eliminating immaterial parts, was as follows: 'Mr. Milton--Sir: I have examined the abstract of title to lot 3, block L. Bell's 5th addition to the city of Seattle, which abstract is composed of 45 pages, the first 35 pages consisting of a copy of an abstract made by King County Abstract Co., and certified to as a true and complete copy by Title Guaranty & Surety Co. This is followed by an extension of the title certified by Osborne, Tramper & Co. on page 41 of the abstract, and the final certificate on page 45 of Booth-Whittlesey-Hanford Abstract Co., the last certificate being numbered 54597 and dated at 8:00 o'clock a.m. on September 13, 1909. From an examination of such abstract I find the title to be as follows: * * * Third. This title passes by direct deed from Dexter Horton and wife to a corporation known as Royal Dairy Co., Incorporated (page 32 of abstract). The articles of incorporation as shown, beginning on page 30 of the abstract, give as the object and purpose of this corporation a general dairy business for the buying and selling of milk and cream, and manufacture of ice cream, butter and cheese, and for such purposes, or, as the articles of incorporation say, 'in connection therewith to acquire and own real estate.' There is nothing in the contract to show that this property was acquired in accordance with such clause of the articles of incorporation, nor do the articles of incorporation directly authorize the Royal Dairy, Incorporated, to sell any real property, and the only right of sale, so far as the abstract shows, arises from the right to purchase, there being no direct provision in the articles of incorporation for the sale of real estate, while the same section provides for the sale of milk and cream and the selling of horses and cattle, and 'such other real and personal property as may be necessary in connection therewith.' In this connection there is nothing to show any authority in the two parties, A. W. Pratt and Lenos J. Rickard, who purport to sign the deed found on page 37 of the abstract by which Royal Dairy, Incorporated, sells the property to Charles Stuht. In order to complete this title, it will be necessary to show a meeting of the trustees of the Royal Dairy, Incorporated, authorizing this deed, by-laws of the corporation authorizing its signature by the officers named; and an election by the corporation electing these persons as president and secretary, or a sufficient substitute for all of the requirements, as you have no information from the abstract sufficient to warrant an scceptance of the title from these officers. * * * Fifth. The west 12 feet of this lot are taken by the city of Seattle in the widening of Fourth avenue (p. 44 of the abstract). * * * Eighth. Subject to the foregoing suggestions, the title to this property is in B. F. Crawford and his wife. Very respectfully submitted, R. S. Jones, Examining Attorney.'

The court found that the contract was executed; that the $500 earnest money was paid; that the abstract was furnished within the 10 days required by the contract; that the foregoing opinion of title was rendered by Richard Saxe Jones as attorney for Milton; that shortly afterward Crawford, Milton, and Jones met in the office of the latter, and the objections to title were insisted upon as ground for a return of the earnest money; that Milton tendered back the abstract not for the purpose of correction, but in support of his demand for the return of the $500, and refused to proceed further with the contract; that he did demand a return of the $500, and refused to give any further time whatever for the correcting of the abstract in any particular, though the 10 days allowed by the contract for examining the abstract had not then expired; that thereafter Jones, acting in behalf of Milton, wrote Crawford a letter, insisting especially that the Royal Dairy Company could not convey, and that he had advised Milton to obtain a return of his money, and ending with a demand for such return; that pending the dispute as to the title Milton purchased another piece of property from another person, and did not desire to take Crawford's property nor intend to go on with the contract with Crawford at all; that the abstract furnished by Crawford shows good and marketable title, and that the defects complained of are technical and could readily be remedied; that, before making the contract, Milton was shown the actual boundaries of the property as existing upon the ground, and was told and shown that 12 feet was taken off the lot on the Fourth avenue side for the purpose of widening the avenue, and well knew before executing the contract the precise property and dimensions thereof; that the abstract furnished by Crawford was accepted as an abstract, and no objection was made or urged on the ground that it was merely a copy not properly certified other than that found in the opinion of title; that no objection was urged on the ground that there was a deficiency in the quantity of land, and that the objections urged and now set up are without merit.

A careful examination of the evidence convinces us that the court's findings so far as they relate to unmixed questions of fact are supported by a preponderance of the evidence. In such cases this court has repeatedly held that findings of the trial court will not be disturbed on appeal. Palmer v. Washington Securities Inv. Co., 43 Wash. 451, 86 [65 Wash. 150] P. 640; Helphrey v. Strobach, 13 Wash. 128, 42 P. 537; Skeel v. Christenson, 17 Wash. 649, 50 P. 466; Seattle Merchants' Ass'n v. Germania Fire Ins. Co. of N. Y., 116 P. 585. It will be observed that all of the objections raised by the opinion of title save one are disposed of by the court's findings on the evidence. The court found, and we think properly, that the abstract, though in large part a copy, was accepted as a sufficient abstract. No original abstract certified as such was ever demanded.

The court found, and the finding is amply supported by evidence, that Milton knew that the lot as originally platted had been reduced by the taking of 12 feet for widening Fourth avenue. He knew the dimensions of the lot as it then existed on the ground. Though reduced in area, the property was properly designated as lot 3, block L, Bell's Fifth Addition. It was still that lot, and all of that lot as it existed at that time. Norton v. Gross, 52 Wash. 341, 100 P. 734.

Parol evidence was admissible to show that the parties contracted and used the description with reference to that known condition of the subject-matter. 17 Cyc. p. 668, par. 3.

But the finding that the abstract furnished by Crawford showed a marketable title presents a question of law. It is raised by the third objection...