Reidt v. Smith

• Decision Date: 11 September 1913
• Citation: 134 P. 1057,75 Wash. 365
• Parties: REIDT v. SMITH et ux.
• Court: Washington Supreme Court

134 P. 1057

75 Wash. 365

REIDT v. SMITH et ux.

Supreme Court of Washington

September 11, 1913

Department 2. Appeal from Superior Court, Spokane County; J. Stanley Webster, Judge.

Action by Stephen Reidt against John W. Smith and wife. Judgment for plaintiff, and defendants appeal. Affirmed.

Geo. W Belt, of Spokane, for appellants.

Wm. S Lewis and J. W. Marshall, both of Spokane, for respondent.

CHADWICK J.

Some time about October 1, 1909, the defendant agreed to sell, and the plaintiff agreed to buy, lots 11 and 20 in the town of Hayford, Spokane county. The purchase price was to be $2,500. The contract was oral. Plaintiff nevertheless from time to time paid various sums so that on January 23, 1911, these payments aggregated $273.20. In May, 1911, after defendant had twice notified plaintiff that he would forfeit the contract and retain all payments made thereon as liquidated damages, he mortgaged the property and thereafter sold it to a third party. The testimony is in sharp conflict. The trial judge believed the testimony of the plaintiff and rejected that of the defendants, and accordingly found that it was the agreement of the parties that plaintiff should have two or three years in which to pay for the land inasmuch as his money was out at interest and was not then due. Plaintiff insists that defendant agreed at the time of the sale, and repeatedly thereafter, to make out a written contract for a deed.

It is first contended that the complaint does not state facts sufficient to constitute a cause of action. While the complaint may not be as formal as it might have been, we think it is sufficient. Defendant assumes that after a lapse of a reasonable time he had the right to forfeit the contract and retain the purchase price. This is not the rule, and in so holding we find it unnecessary to discuss much that is in the briefs of counsel. In the absence of a contract expressly providing for the forfeiture of payments made upon an executory contract for the sale of lands, such payments cannot be retained by a vendor who elects to rescind or repudiate the transaction, unless it be under some exceptional circumstance; for instance, where a court of equity can say that the amount paid is commensurate with the amount that would have been due for rent if the land had been leased.

Assuming that defendant is right in his contention that his purchase price was to have been paid within one year, he accepted...