Palmer v. Clark
| Decision Date | 29 March 1909 |
| Citation | 52 Wash. 345,100 P. 749 |
| Court | Washington Supreme Court |
| Parties | PALMER v. CLARK et ux. |
Appeal from Superior Court, King County; R. B. Albertson, Judge.
Action by Chester A. Palmer against Barnett J. Clark and wife. From a judgment for defendants, plaintiff appeals. Reversed.
Henry R. Harriman, Clay Allen, and Walter M. French, for appellant.
Hayden & Langhorne, for respondents.
This is an action for damages for a breach of contract to sell under an option agreement. The complaint was the ordinary complaint in such cases, alleging the option and setting it out as an exhibit in the case, alleging that the plaintiff had elected to take the land under the option, the value of the land, the refusal of the defendants to comply with the option, and that the defendants had before the expiration of the option sold the land to a third party, thereby incapacitating themselves from performing their contract. The plaintiff was required on motion of the defendants, to amend his complaint by alleging what was done by the plaintiff in the way of tender during the 65 days within which he could exercise his option and an amended complaint was filed. This complaint, after having been assailed by some motions which were allowed, was answered, in which answer was admitted the signing of the option contract, but denied that the plaintiff or any other person paid the defendants the sum of $50 or any other sum for signing said paper writing; also admitted that since the signing of the alleged option agreement defendants had sold the property described. For a second defense, the answer admitted the execution of the option agreement, and the execution and transmission of the same to the plaintiff, and that the plaintiff neglected and refused to accept said paper writing or to pay defendants the sum of $50, or any part thereof, and alleged that the plaintiff at all times in said amended complaint and the answer mentioned was financially unable to purchase said premises, was in all respects financially irresponsible, was not possessed of sufficient means to purchase said premises at any time, and, at the time said paper writing secured by these defendants, plaintiff had no intention whatever of purchasing these premises. The affirmative matter in the answer was denied by the reply. At the conclusion of the plaintiff's testimony, motion for nonsuit was made by the defendants, which was granted by the court, and the cause was dismissed, the court taking the view that, under the amended complaint, there was no longer any suit upon the option, but that another contract had been set up, and that tender under the new contract pleaded had not been made. The plaintiff asked leave to introduce testimony to meet the requirements of the court but the court refused to allow the same to be admitted.
An investigation of this record convinces us that there has been a miscarriage of justice. As we have indicated above, the complaint was a simple action for damages for the violation of an option contract, and no amendment should have been required of the appellant; for it is too well established to warrant the citation of authority that a complaint, which shows the making of a contract and the violation of the same by the defendant, and alleges the amount of damages resulting to the plaintiff from the breach, contains the essential elements of a good cause of action ex contractu, and that the tender of performance by one party to a contract is not necessary when the other party places himself in a position where it can be readily seen that he cannot comply with the contract, or absolutely repudiates the contract by...
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Stanley v. Anthony Farms
...24 S.D. 257, 123 N.W. 722; Buechler v. Olson, 194 Iowa, 245, 189 N.W. 741; Munson v. McGregor, 49 Wash. 276, 94 P. 1085; Palmer v. Clark, 52 Wash. 345, 100 P. 749; Boothe v. Dailey, 96 Kan. 711, 153 P. Boothe v. Dailey, 103 Kan. 255, 173 P. 283; Cornelius v. Harris (Tex. Civ. App.) 163 S.W.......
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Kanavos v. Hancock Bank & Trust Co.
...lack of ability, and, in the absence of such proof, there is a presumption that the optionee is able to perform. Palmer v. Clark, 52 Wash. 345, 100 P. 749 [1909]"), and Atchison v. Englewood, 193 Colo. 367, 375, 568 P.2d 13 (1977) (placing the burden on the The burden was on Kanavos to prov......
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Norm Advertising, Inc. v. Monroe Street Lumber Co.
... ... violation of the contract by the defendant; and the amount of ... damages resulting to the plaintiff therefrom. Palmer v ... Clark, 52 Wash. 345, 100 P. 749; Cruickshank v ... Lich, 158 Wash. 523, 291 P. 485; 17 C.J.S., Contracts, § ... 533, p ... ...
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...optionee's lack of ability, and, in the absence of such proof, there is a presumption that the optionee is able to perform. Palmer v. Clark, 52 Wash. 345, 100 P. 749. Plaintiff's action is not premature merely because his option entitled him to secure possession of the grandstand in 1955. T......