Owen v. Henderson

• Citation: 16 Wash. 39,47 P. 215
• Parties: OWEN ET AL. v. HENDERSON.
• Decision Date: 04 December 1896
• Court: United States State Supreme Court of Washington

47 P. 215

16 Wash. 39

OWEN ET AL. v. HENDERSON.

Supreme Court of Washington

December 4, 1896

Appeal from superior court, Kitsap county; John C. Denney, Judge.

Action by Elizabeth W. Owen and another against M. C. Henderson for a balance alleged to be due on a written contract. There was a judgment in favor of plaintiffs, and defendant appeals. Reversed.

H. E Shields and John K. Brown, for appellant.

Arthur & Wheeler and James B. Dowd, for respondents.

GORDON, J.

Respondents brought this action to recover the balance alleged to be due on a written contract entered into between the parties on the 13th of December, 1892, by the terms of which the respondents agreed to sell and the appellant to buy certain premises described as "Lots 16, 17, 18 and 19, in the town of Charleston, Kitsap county," for the sum of $1,300, of which $100 was paid down at the time of entering into the contract, $500 was paid on the 15th of December, 1892, and the balance was to be paid on or before December 12, 1893. The complaint alleges that on said last-mentioned day a tender was made of a good and sufficient deed of conveyance, and a demand upon appellant for the payment of the balance of the purchase price. The answer admits the making of the contract, and payment of $600 on account thereof, and for defense and counterclaim alleges a want of title in the plaintiffs (respondents) on December 12 1893; that on that day, namely, December 12, 1893, defendant (appellant) tendered to plaintiffs the amount remaining due under the terms of the agreement, and demanded a deed conveying to defendant a good title to the premises in fee simple, and that thereafter, on the 2d day of January, 1894 defendant elected to rescind on account of the plaintiffs' failure to comply with the terms of the written contract; that thereupon defendant notified respondents of such rescission, and demanded from them the repayment of the sum of $600 theretofore paid. The case was tried by the court without a jury, and findings of fact and conclusions of law duly made, upon which judgment was entered in favor of the plaintiffs, and defendant has appealed.

Among other things, the court found that on December 12, 1893 plaintiffs tendered to defendant "a good and sufficient deed of conveyance of said real property; *** that at the time said tender was made, and at all times mentioned herein, the plaintiffs owned said real estate, and had a right to convey the same." This finding was excepted to, and is assigned as error. The record discloses that the premises embraced in the contract of sale between the parties are located in lot 1, section 22, township 24 N., range 1 E., W. M. This lot was owned on August 11, 1890, by W. H. Braden, M. L. Beets, and R. C. Bott, who on that day conveyed to O. A. Bulette the "west half" of lot 1, section 22, township 24 N., range 1 E., W. M., according to the government survey, containing 20 acres, more or less. It is the claim of the appellant that the grant of the "west half" conveyed to Bulette the west half in quantity, and not the part lying westerly of a line drawn north and south midway between and parallel to the side lines of said lot. The lot is the fraction of a 40-acre subdivision, a portion of the southeast corner being cut off by the bay. Bulette platted the town of Charleston on the west half of said lot only,...