Pixton v. Silva, 1035--III

• Decision Date: 15 April 1975
• Docket Number: No. 1035--III,1035--III
• Citation: 13 Wn.App. 205,534 P.2d 135
• Parties: Kenneth E. PIXTON and Alyce Pixton, his wife, Appellants, v. Manuel J. SILVA, Jr., et al., Respondents.
• Court: Washington Court of Appeals

Page 205

13 Wn.App. 205

534 P.2d 135

Kenneth E. PIXTON and Alyce Pixton, his wife, Appellants, v. Manuel J. SILVA, Jr., et al., Respondents.

No. 1035--III.

Court of Appeals of Washington, Division 3.

April 15, 1975.

Nels A. Hansen, Ephrata, for appellants.

D. Ken Earl, Moses Lake, for respondent Silva.

Garfield Jeffers, James M. Danielson, Wenatchee, for respondent Farm Management.

GREEN, Judge.

The plaintiffs, Kenneth and Alyce Pixton, commenced this action against defendants, Manuel and Ila Silva, for specific performance of an earnest money agreement to purchase a dairy farm. Alternatively, plaintiffs sought to recover from the Silvas and defendant Farm Management Services, Inc., real estate brokers, $20,000 paid by Mr. Silva as earnest money. At the close of plaintiffs' case, the trial court granted defendants' motions to dismiss the complaint. Plaintiffs appeal.

Defendants Silva, dairy operators in Battleground, Washington, decided to move and purchase another dairy. They employed Ray Mudd, an associate broker of Farm Management, to locate a dairy for them. Plaintiffs Pixton, owners of a dairy operation in Adams County, Washington, had previously listed their dairy for sale with Farm Management, but that listing had expired. On February 23, 1973, Mr. Pixton happened to come upon Mr. Mudd and Mr. Silva in a coffee shop. At that time, it was determined that the Pixtons were still interested in selling their dairy. That evening Mr. Mudd visited the Pixton home where the terms of sale were discussed. Pixtons stated they wanted $215,000 for their dairy and to that price $15,000 was added as a sales commission for Farm Management, making a total selling price of $230,000.

On the following day, an earnest money agreement was entered into between Mr. and Mrs. Pixton and Mr. Silva, providing for a sale price of $230,000 and forfeiture of the earnest money as liquidated damages should Mr. Silva refuse to complete the purchase. Mr. Silva paid $20,000 to Farm Management as earnest money. The agreement erroneously referred to the dairy as being situated in Grant rather than Adams County.

The next weekend Mr. Silva brought his wife and children to visit the Pixtons' dairy. Mr. Pixton showed the dairy operation to Mr. Silva and his son while Mrs. Pixton showed Mrs. Silva around and they discussed the general area: churches, associations and schools. During this visit, Mrs. Silva discovered that the farm was in Adams rather than Grant County and upon inspecting the house noted a number of things that were not to her liking. She did not discuss these matters with the Pixtons nor with her husband until after they had returned to Battleground.

The following day, Mr. Silva called Mr. Mudd and told him that he was not going through with the purchase of the dairy and requested return of the $20,000 earnest money. Mr. Mudd conveyed this information to the Pixtons and requested them to sign a document releasing Farm Management from all obligations, which they refused to do. Six or 7 days later, Farm Management returned the earnest money to Mr. Silva.

These facts are substantially embodied in the court's findings of fact. Plaintiffs Pixton assign error to various of these findings and to findings proposed but not given; however, none of the findings to which error has been assigned are set out verbatim as required by CAROA 43 and consequently must be accepted as verities on appeal. Union Bank v. Kruger, 1 Wash.App. 622, 463 P.2d 273 (1969). In any case, our review of the evidence indicates that the essential findings are amply supported by the evidence.

Based upon these facts, the trial court concluded that (1) defendants were not bound by the earnest money agreement because Mrs. Silva had not signed or ratified it; (2) Farm Management was not negligent in failing to obtain Mrs. Silva's signature or in returning the earnest money since no contract had been effected between the Pixtons and the Silvas; and (3) Silvas and Farm Management are each entitled to an award of $750 reasonable attorney's fees from the Pixtons.

First, plaintiffs contend the trial court erred in concluding that the Silvas were not bound by the earnest money agreement because Mrs. Silva had not signed or ratified it. Plaintiffs recognize that in 1972 the legislature amended RCW 26.16.030 to provide:

Either spouse, acting alone, may manage and control community property, with a like power of disposition as the acting spouse has over his or her separate property, except:

(4) Neither spouse shall purchase or contract to purchase community real property Without the other spouse joining in the transaction of purchase or in the execution of the contract to purchase.

(Italics ours.) Plaintiffs properly point out that prior to this amendment, the husband could Acquire community real property, but could not sell, convey or encumber it without joinder of the wife. Further, when community real property was sold by one spouse without joinder of the other, the sale or contract of sale was not void but voidable. Sander v. Wells, 71 Wash.2d 25, 426 P.2d 481 (1967). Plaintiffs argue that just as a contract of sale signed by one of the spouses could be authorized or ratified by the nonsigning spouse, Whiting v. Johnson, 64 Wash.2d 135, 390 P.2d 985 (1964); In re Horse Heaven Irrigation Dist., 19 Wash.2d 89, 141 P.2d 400 (1943); Sander v. Wells, Supra, a contract to purchase community real property signed by one spouse can be ratified or authorized by the nonsigning spouse. Thus, plaintiffs contend that Mrs. Silva, during her visit to the dairy, ratified, authorized, acquiesced or participated in the purchase of the dairy thereby binding the community to the contract of purchase as evidenced by the earnest money agreement. We disagree.

Discussing the effects of the new amendment to RCW 26.16.030 upon real property acquisition, Professor Harry M. Cross in Equality for Spouses in Washington Community Property Law--1972 Statutory Changes, 48 Wash.L.Rev. 527, 534--37 (1973), observes that the exceptions to this statute should be strictly construed and concludes that:

If both spouses do not 'join' or 'participate' in the transaction, the new law should give the nonjoining spouse power to disaffirm the transaction and recover community funds paid the seller. The purchase transaction, in a community property context, Is beyond the power of one spouse acting alone.

(Italics ours. Footnote omitted.) Here, the record reveals no evidence that Mrs. Silva joined her husband in the execution of the earnest money...