Munson v. McGregor

• Decision Date: 13 April 1908
• Citation: 94 P. 1085,49 Wash. 276
• Parties: MUNSON v. McGREGOR.
• Court: Washington Supreme Court

94 P. 1085

49 Wash. 276

MUNSON v. McGREGOR.

Supreme Court of Washington

April 13, 1908

Appeal from Superior Court, King County; H. B. Rigg, Judge.

Action by Mark Munson against Gregor McGregor. Judgment for defendant, and plaintiff appeals. Reversed, and judgment directed.

Granger & Magill, for appellant.

George Fowler, for respondent.

FULLERTON J.

In the summer of 1906 the respondent held a contract in writing for the purchase of certain real property situated in the city of Seattle, which property he listed with one Fraser, a real estate agent, for the purposes of sale. On July 3d of that year the agent found a purchaser in the person of the appellant, and thereupon entered into the following contract with him: 'Seattle, Washington, July 3, 1906. Received from Mark Munson one hundred twenty-five and 00/100 dollars as earnest money for the purchase of the following described property in the county of King, state of Washington, viz Lots 5 and 6, block 6, Ladd's 1st addition to Seattle. The purchase price is forty-five hundred ($4,500.00) dollars to be paid as follows: All assessments and taxes paid in full, $2,635.00 more cash upon delivery of a contract for warranty deed from the owner within twenty days from date of delivery of abstract. The balance to be secured by a mortgage on the premises with interest at 7% per annum, payable $580.00 November 23d, 1906, $580.00 November 23, 1907 $580.00 November 23, 1908. Abstract of title brought down to date, certified to by a competent abstracter, to be furnished by owner, and purchaser to have twenty days in which to examine the same. If this title is not perfect and cannot be perfected within sixty days, said payment of $125.00 shall be refunded. If the purchaser fails to perform his part of this agreement, the payment of $125.00 already made shall be forfeited. Time is the essence of this contract. By Fred Fraser, Agent.' The respondent accepted the contract in writing, and was paid the earnest money mentioned therein. The abstract required to be furnished by the terms of the contract was handed the appellant on July 11, 1906. The respondent had never recorded his contract of purchase, and the abstract failed to show his interest in the property, but showed, on the contrary, title in a third person, a stranger to the contract. The appellant within the 20 days allowed him for an examination of the abstract returned it to the agent, with the request that it be completed so as to show the respondent's interest in the property, and his right to convey the same. A few days after the respondent sold the property to another person at an advanced price, thereby putting it beyond his power to comply with his contract with the appellant. The appellant thereupon brought this action to recover as for a breach of the contract averring damages in the sum of $2,000. The action was tried by the court without the aid of a jury, and resulted in a judgment in favor of the respondent.

The trial court based his judgment on a finding to the effect that the appellant had, through the real estate agent, asked for further time in which to make the payments, and, when further time was refused him, had, through the same source returned the abstract to the respondent; and, further, that the appellant had not...