Reard v. Ephrata Orchard Homes Co.

• Decision Date: 16 February 1914
• Citation: 78 Wash. 180,138 P. 678
• Court: Washington Supreme Court
• Parties: REARD et ux. v. EPHRATA ORCHARD HOMES CO.

138 P. 678

78 Wash. 180

REARD et ux. v. EPHRATA ORCHARD HOMES CO.

Supreme Court of Washington

February 16, 1914

Department 2. Appeal from Superior Court, Grant County; R. S. Steiner Judge.

Action by J. D. Reard and wife against the Ephrata Orchard Homes Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Sam R. Sumner and Reeves, Crollard & Reeves, all of Wenatchee, for appellant.

Boyd P Doty, of Ephrata, and E. L. Skeel, of Seattle, for respondents.

MOUNT J.

The plaintiffs brought this action to annul an executory contract and for the possession of lands described in the contract. The cause was tried to the court without a jury, and resulted in a judgment substantially as prayed for in the complaint. The defendant has appealed.

The facts are, in substance, as follows: On the 16th day of August, 1909, the respondents, J. D. Reard and wife, entered into a written contract with one Y. V. Wells. This contract by mesne conveyances was assigned to the appellant. This contract provided for the sale by the respondents to the appellant of 380 acres, more or less, of unimproved land located near the town of Ephrata, in Grant county. The purchase price was $30,000, payable in installments as follows: $4,000 on or before March 1, 1910; $2,000 on or before July 1, 1910; $10,000 on or before March 1, 1911 $10,000 on or before March 1, 1912; and $4,000 on or before March 1, 1913; all deferred payments to draw interest from the 16th day of August, 1909, at the rate of 6 per cent. per annum, payable annually on the 16th day of August of each year until the whole sum was fully paid. The contract also provided as a consideration therefor that certain acts were to be performed by the vendee, among which were the payment of all taxes, assessments, etc., which might accrue against the property after the date of the contract the digging of a well of a certain capacity and the installation of an irrigation system in connection therewith, and the platting of the land into tracts. Time was declared to be the essence of the contract; and it was provided therein that in case of default on the part of the vendee in the performance of any of the obligations, the vendors were released from all obligations in law or equity imposed by the contract. The contract also contained a provision as follows: 'Provided, that when the said second party shall have paid to the said first parties the sum of ten thousand dollars according to the terms of this contract he shall upon the execution and delivery to said first parties of his promissory notes for the balance unpaid, said notes to be for the same amount, payable at the same time and draw the same rate of interest as the deferred payments then unpaid, under the terms of said contract and secure said notes by a first mortgage upon such portions of said real estate as has not been conveyed by said first parties, under the terms of this contract, be entitled to a warranty deed for all the remainder of said premises.' The contract also provided that upon final payment the vendors were to have a good and sufficient deed to the premises, free and clear of all incumbrances. The appellant, or its predecessor in interest, paid the first two installments of $4,000 and $2,000. No other sum was ever paid or tendered to the vendors. When the appellant was in default in the payment of $10,000 due on March 1, 1911, and interest up to that date, the respondents, at the solicitation of the president of the appellant corporation, agreed orally that, if the appellant would pay $4,000 and the accrued interest at the rate of 10 per cent. per annum, and would execute notes secured by a mortgage upon the property, the respondent would thereupon execute a deed conveying the title to the appellant. Thereafter, on May 27, 1911, notes and a mortgage and a deed to the property were deposited in a bank in Seattle, to be delivered to the appellant, or its assigns, upon the payment of $4,000 and accrued interest, amounting altogether to something like $7,000. Thereafter, about July 1, 1911, the respondents notified the appellant that, unless the oral agreement was complied with and the money paid as therein agreed, they would withdraw the papers delivered in escrow and rescind the oral agreement. After this notice the appellant did not comply with the oral agreement, and the papers were withdrawn and the oral agreement rescinded. Thereafter, on July 15th, the respondents served a written notice upon the appellant that if the terms of the written contract were not complied with by July 24, 1911, the contract would be deemed null and void, and all moneys paid would be declared forfeited according to the terms of that contract. No further payments were made, and on July 24th the respondents filed a written declaration of forfeiture in the office of the auditor of Grant county, and on July 26th served a copy upon the appellant company. Thereafter, on March 4, 1912, this action was begun.

The facts above stated are not disputed. In the complaint it was not alleged that the respondents, at the time the written notice of forfeiture was served, or at any time, tendered a deed of the premises to the appellant. And it was not claimed upon the trial that any deed had been tendered.

It is claimed by the appellant that the reason for not complying with the oral agreement entered into as aforesaid was that a patent had not been issued by the United States for 160 acres of the land in question, and by reason of that fact there was a failure of title.

The principal contention of the appellant, and the only one which we deem necessary to notice in this case is that the tender of a good and sufficient deed was a mutual, dependent, and concurrent act necessary to be performed by the respondents before a forfeiture could be declared; that it was both necessary to allege a tender of a deed and to prove that fact before the court was authorized to annul the contract. A number of cases from...