Save-Way Drug, Inc. v. Standard Inv. Co.

• Decision Date: 15 November 1971
• Docket Number: No. 1009--I,SAVE-WAY,1009--I
• Citation: 490 P.2d 1342,5 Wn.App. 726
• Parties: DRUG, INC., a Washington corporation, Respondent, v. STANDARD INVESTMENT COMPANY, Appellant.
• Court: Washington Court of Appeals

Page 726

5 Wn.App. 726

490 P.2d 1342

SAVE-WAY DRUG, INC., a Washington corporation, Respondent, v. STANDARD INVESTMENT COMPANY, Appellant.

No. 1009--I.

Court of Appeals of Washington, Division 1, Panel One.

Nov. 15, 1971.

Johnson, Inslee, Best & Chapin, Leslie A. Wahlstrom, Bellevue, for appellant.

Cartano, Botzer & Chapman, John D. Cartano, Frank W. Birkholz, Seattle, for respondent.

UTTER, Judge.

Standard Investment Company appeals from a summary judgment granting specific performance of an earnest money agreement. Judgment was granted in favor of Save-Way Drug, Inc., in the amount of $110,497.13. Standard Investment appeals. ¹

Although the subject real property of the dispute was located in King County, Washington, the agreement was negotiated, executed and closed in Portland, Oregon. However, the words 'Washington, July 1, 1969' were typed at the top of the agreement. Appellant assigns error to the trial court's finding there were no material issues of fact, for the reason that respondent's affidavit in support of its motion for summary judgment allegedly fails to comply with the provisions of CR 56(e). He further assigns as error the ruling of the trial court that Washington law governs the case.

The statement of facts signed by the trial judge constitutes the sole record of what occurred in the trial court and states:

At the opening, and on several occasions during the course of the argument, * * * attorney for the Defendant, stated that there were no disputed facts, that he would not try to create a sham fact issue, that the matter was a proper one for Summary Judgment and that the Court should decide the questions involved on Summary Judgment. The Court decided the matter on this basis, noting that Defendant's brief, page one, stated the facts were as set out in two affidavits (Mosby and Pollock) which were not disputed and which did not contradict each other.

Issues not raised in the hearing for summary judgment cannot be considered for the first time on appeal. Almy v. Kvamme, 63 Wash.2d 326, 329, 387 P.2d 372 (1963). Standard Investment's attempt to interject for the first time, at the appellate level, a challenge to the sufficiency of the supporting affidavit of Save-Way and its attempt to assert that Save-Way did not affirmatively present factual evidence upon which its motion was based cannot be considered.

Standard Investment next argues that Oregon law, not Washington law, should govern the matter and that the only evidence before the court indicated the parties' intention to be governed by Oregon law. The law of Oregon was not pleaded by Standard Investment. RCW 5.24.010--5.24.070 provides that the courts of this state shall take judicial notice of the constitution, common law and statutes of every other state. However, RCW 5.24.040 requires that such laws be pleaded. In re Candell, 54 Wash.2d 276, 340 P.2d 173 (1959). If the law of another jurisdiction is not pleaded, it is assumed to be the same as the law of Washington. Investment Service Co. v. LaLonde, 63 Wash.2d 834, 389 P.2d 414 (1964); Chandler v. Doran Co., 44 Wash.2d 396, 398, 267 P.2d 907 (1954).

The earnest money agreement between the parties contained the following clause:

It is agreed that if seller does not approve this sale within the period allowed broker below in which to secure seller's acceptance, or if the title to the said premises is not insurable or marketable, or cannot be made so within thirty days after notice containing a written statement of defects is delivered to seller, the said earnest money shall be refunded. But if said sale is approved by seller and title to the said premises is insurable or marketable and purchaser neglects or refuses to comply with any of said conditions within ten days after the said evidence of title is furnished and to make payments promptly, as hereinabove set forth, then the earnest money herein receipted for (including said additional earnest money) shall be forfeited to seller as liquidated damages and this contract thereupon shall be of no further binding effect.

The law of the state of Washington is in accord with the position taken by Restatement of Contracts § 378 (1932) which states, 'The fact that a contract contains a provision for the payment of a penalty or liquidated damages for breach of a promise is not a bar to the specific enforcement of the promise.' The rationale for this rule as noted by the Restatement is:

A provision for a penalty for the breach of a promise does not afford an adequate remedy, in cases where damages are not adequate, since the provision is not itself enforceable beyond the amount collectible as damages. Neither does a provision for the payment of a sum as liquidated damages afford an adequate remedy, even though it is itself an enforceable promise; since it is the uncertainty as to the extent of injury that makes the provision for liquidated damages enforceable, and no one supposes that the parties by their advance agreement actually render the extent of injury certain. Such a provision, unlike a penalty, affords a remedy; but it is not necessarily an adequate remedy.

Blass v. Waldrip, 176 Wash. 324, 29 P.2d 403 (1934); Cochran v. Lakota Land & Water Co., 171 Wash. 155, 17 P.2d

861, 19 P.2d 927 (1933); Auve v. Wenzlaff, 162 Wash. 368, 298 P. 686 (1931); Hamilton v. Norris, 144 Wash. 326, 258 P. 4 (1927); Grays Harbor Dairymen's Assoc. v. Engen, 130 Wash. 169, 226 P. 496 (1924); McCutchen v. Brink, 129 Wash. 103, 224 P. 605 (1924); Pierce County Dairymen's Assoc. v. Templin, 124 Wash. 567, 215 P. 352 (1923); Asia Inv. Co. v. Levin, 118 Wash....