Smith v. Barber

• Decision Date: 18 June 1917
• Docket Number: 13923.
• Citation: 165 P. 873,97 Wash. 18
• Parties: SMITH et al. v. BARBER et al.
• Court: Washington Supreme Court

165 P. 873

97 Wash. 18

SMITH et al. v. BARBER et al.

No. 13923.

Supreme Court of Washington

June 18, 1917

Department 1. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action by Del Cary Smith, administrator and others, against Anna Barber and another. Judgment for defendants, and plaintiffs appeal. Affirmed.

Tolman & King, of Spokane, for appellants.

E. J Farley, of Spokane, for respondents.

MORRIS J.

Appeal from a decree denying specific performance of a contract for the purchase of real estate. Prior to October, 1910, Owen H Barber and Anna Barber were husband and wife. On the 3d day of August, 1907, they entered into a contract with the state of Washington for the purchase of certain real estate in the city of Spokane. The purchase price was fixed at $300, of which $30 was paid at the time of the execution of the contract and the remainder was to be paid in nine annual installments on March 1st, with interest on all sums then unpaid. By a decree of divorce in October, 1910, this property was set aside to Anna Barber as her separate property. In November, 1910, Owen H. Barber and Anna Barber entered into the contract which forms the basis of this action, and which is as follows, so far as material:

'It is hereby agreed, by and between Anna Barber divorced wife of O. H. Barber, the party of the first part, and O. H. Barber, the party of the second part, that the said party of the first part will sell to the said party of the second part, his heirs and assigns; and the said party of the second part will purchase of said party of the first part, her heirs, executors, or administrators, the following described lot, tract or parcel of land situated in Spokane county, state of Washington, to wit: An undivided half interest in lot 12, block 31, subdivision of school section 16, township 25, range 43, E. W. M., with the appurtenances thereto belonging, on the following terms:

'1. The purchase price of said land to be $1,000 of which the sum of $1,000 has this day been paid as earnest money, the receipt of which is hereby acknowledged by the said party of the first part, and the further sum of $143.50, to be paid the state of Washington, on a contract now outstanding with interest thereon from date until paid at the rate of six per cent. per annum.

'2. Said land to be conveyed by good and sufficient deed to the said party of the second part, when said purchase price shall have been fully paid.

'3. Time is the essence of this contract.

'4. If the said party of the second part fails to pay the whole sum of said purchase price and interest, within the time above specified, then the said party of the first part may if she so elect rescind this contract, and in that case all payments made by said party of the second part shall be forfeited.'

Owen H Barber died the following April, and the appellants are his administrator and heirs. On July 18, 1913, nothing having been paid upon the contract by Owen H. Barber, Anna Barber served upon his administrator a notice of forfeiture, appellants being given until the 29th day of July to comply with the contract and make the payments therein designated; and on December 24, 1913, the contract still being uncomplied with, a second notice of forfeiture was served in which the contract was declared rescinded and forfeited. On December 7, 1914, the administrator tendered to respondent the sum of $180 as payment of the amount due under the contract, which tender was refused, and the same, with interest, was repeated at the trial and the amount deposited with the clerk of the court. The lower court found that plaintif...