Reddish v. Smith

• Decision Date: 24 November 1894
• Citation: 10 Wash. 178,38 P. 1003
• Parties: REDDISH ET UX. v. SMITH ET UX.
• Court: Washington Supreme Court

38 P. 1003

10 Wash. 178

REDDISH ET UX. v. SMITH ET UX.

Supreme Court of Washington

November 24, 1894

Appeal from superior court, Pierce county; Emmett N. Parker, Judge.

Ejectment by Eugene A. Reddish and wife against G. W. Smith and wife. Judgment for plaintiffs. Defendants appeal. Affirmed.

H. W. Lueders and John Leo, for appellants.

Walter M. Harvey and Shank, Murray & Dresbach, for respondents.

DUNBAR C.J.

This is an action of ejectment based upon a contract for the sale of land, entered into by the respondents and the appellant G. W Smith on March 18, 1891. The contract in question was as follows: "This contract, entered into this 18th day of March, A. D. 1891, by and between Eugene A. Reddish and Jennie E. Reddish, his wife, of the city of Tacoma, state of Washington, the parties of the first part, and George W Smith, of the same place, the party of the second part witnesseth: The parties of the first part agree to erect a dwelling house on lots number fourteen and fifteen (14, 15) in block No. two (2) in Ross' addition to Tacoma, and to sell and convey the said lots, with the appurtenances, to the party of the second part, subject to one mortgage, in the sum of $800, and all street assessments. The parties of the first part also agree to advance to the party of the second part the sum of $400, the receipt of which is hereby acknowledged by said party of the second part. The said house, so to be erected on said lots, shall be such an one as is indicated by the plans and specifications hereto attached, and made a part of this contract. The said lots are to be sold and conveyed by the parties of the first part, with general warranty deed, subject to the before-mentioned incumbrances, as soon as the party of the second part shall have paid the parties of the first part the full sum of $1,325, as herein specified, and after the said party of the second part has duly assigned and transferred to the parties of the first part a certain contract which he holds for the sale to him of lots five and six (5, 6) in block numbered nineteen (19) in Coulter's addition to Tacoma, on which contract there is yet due and owing the sum of $50, which the parties of the first part agree to pay. The party of the second part agrees to pay the parties of the first part the above-mentioned $1,325, and ten per cent. per annum interest from this date, in monthly installments. Each payment to be so made shall be the sum of $20 and the amount of interest that has accumulated, at the date of each payment, on the whole of the said deferred payment. If the said Smith shall fail to make any one or more monthly payments as herein provided, then all sums of interest due by the terms of this contract shall be added to the principal, and draw like interest as the principal sum. In case the party of the second part shall fail to pay promptly the monthly installments herein provided for, after a demand made on him for the same of thirty days, then the party of the first part may, at his option, declare this contract forfeited, and he shall enter upon and repossess himself of the said premises, and thereupon this contract shall be at an end. [Signatures.]" The payments were made by appellant Smith according to the terms of the contract until the last of June, 1893. After a default in the monthly payments provided for, respondents gave notice to appellants that, if they did not pay the amount due within 30 days, they would elect to forfeit the contract, and take possession of the land sold, the appellants having gone into possession of the land under the contract. The complaint alleged ownership of the land in controversy, the execution and delivery of the contract, the performance of the conditions of the same on the part of the plaintiffs, the breach of the contract by the defendant Smith in failing to pay certain installments for the purchase price of the land, the service of notice of election to forfeit, and demand for the possession of the premises. The answer was a general denial of the allegations of the complaint, and an affirmative allegation of noncompliance with the contract on the part of the respondents; also alleging defective title in the respondents. Appellants also demanded compensation for permanent improvements made by them before the forfeiture, and asked that respondents should refund the installments of the purchase price of the land previously paid. Upon the issues thus brought, a trial was had, which resulted in findings and judgment in favor of the respondents. The appellants, however, interposed a demurrer to the complaint, to the effect that it did not state facts sufficient to constitute a cause of action, which demurrer was overruled by the court.

The first contention of the appellants as to the deficiency of the complaint is that the complaint should have alleged the tender of the deed by the plaintiffs to the defendants prior to the commencement of the action. We do not think that the authorities cited by the appellants to sustain this contention are in point. They sustain the general rule that in a contract of this kind, where the payment of the purchase price and the giving of the deed are concurrent acts, the vendor, before declaring a forfeiture, must make a tender of the conveyance; but in this instance the purchase price was to be paid in installments, and the whole amount of the purchase price to be paid under the contract was not yet due. Consequently, the time for conveying land under the contract had not yet arrived; and the vendor could not, under any principle of law, be compelled to...