Snyder v. Roberts, 32803

• Decision Date: 03 January 1955
• Docket Number: No. 32803,32803
• Citation: 278 P.2d 348,45 Wn.2d 865
• Parties: , 52 A.L.R.2d 631 Marguerite SNYDER, Appellant, v. Olga ROBERTS, Respondent.
• Court: Washington Supreme Court

Page 865

45 Wn.2d 865

278 P.2d 348, 52 A.L.R.2d 631

Marguerite SNYDER, Appellant, v. Olga ROBERTS, Respondent.

No. 32803.

Supreme Court of Washington, Department 2.

Jan. 3, 1955.

Elliott & Schneider, Seattle, for appellant.

George Olson, Frank C. Trunk, Seattle, for respondent.

HILL, Justice.

This is an action by a grantor against her grantee for damages in the amount of $8,000, for failure to comply with the following covenant contained in the deed:

'In consideration of the sale of this property and for other valuable consideration, the grantee, for her heirs and assigns, agrees to construct and maintain a good and sufficient wall on the grantee's above described property, running along the south property line separating the properties of the grantor and grantee, and to restore the grantor's property to the original level. This covenant shall run with the land. The purpose of this wall is to give sufficient lateral support to grantor's property adjoining on the south, and is to be built within a reasonable time.'

The defense is that grantee never agreed to the insertion of the covenant in the deed; that it was no part of the contract for the purchase of the property; and that, if the acceptance of the deed under protest implied a promise to perform the covenant, there was no consideration for that promise.

We shall refer to the parties throughout this opinion as grantor and grantee, although we are aware that they did not occupy that relationship until the execution and delivery of the deed.

It is not disputed that the parties entered into an earnest-money agreement March 18, 1946, whereby the grantor agreed to sell and the grantee agreed to buy the north 120 feet of a 300-foot tract for $3,600. A check for $1,800 was delivered to the grantor's agent at that time, and on April 19, 1946, the grantee gave the grantor's agent a check for the balance of the purchase price. There can be no question that the grantee thereby met all of the requirements of the earnest-money agreement and was entitled to a warranty deed in accordance with its terms.

Just when the grantee entered upon the property she was purchasing and commenced bulldozing, excavating, and leveling preparatory to building a residence is in dispute, but we shall assume that it was prior to the making of the final payment on the property. It is grantor's contention that grantee removed some two hundred cubic yards of grantor's property and left her property without adequate lateral support. Grantor's agent had prepared a deed which grantor refused to execute until the above quoted covenant was inserted therein. She directed her agent to deliver the deed to her attorney, who added the covenant. The grantee objected to the inclusion of the covenant and for some time refused to accept the deed, but the grantor was obdurate and insisted upon its inclusion and finally, about October 15th, grantee accepted the deed.

Grantor's position is that, by virtue of that covenant, the grantee assumed an obligation to build a wall which at that time would have cost $6,025 (but which, at the time of trial, would have cost $7,145), together with the obligation to furnish two hundred cubic yards of dirt (which, at the time of trial, would have cost $200) to restore grantor's property to the original level. Grantee's failure to build an adequate wall and to restore the two hundred cubic yards of dirt has, grantor contends, damaged her in the amount of $7,345.

The trial court, concluding that there was no consideration for the inclusion of the covenant referred to in the deed and consequently nothing to submit to a jury, dismissed grantor's cause of action and directed that the covenant be deleted from the deed. Grantor appeals, urging three reasons why the judgment of dismissal should be reversed.

Grantor argues that the covenant constituted a modification of the earnest-money agreement and that no additional consideration is required therefor, citing LaPlante v. Hubbard, 1923, 125 Wash. 621, 217 P. 20. As is made clear therein, the rule of that case is applicable only to the modification of executory contracts. In the instant case, when the grantee made the final payment called for by the earnest-money agreement to grantor's agent, she had fully performed her part of that agreement. She was entitled to performance by the grantor, and the latter could not thereafter impose an additional obligation on the grantee without some new consideration therefor. The rule is well settled that, when a contract has been executed by one of the parties thereto, it cannot be modified except by agreement supported by a new consideration. Tacoma & Eastern Lumber Co. v. A. B. Field & Co., 1918, 100 Wash. 79, 170 P. 360; Stauffer v. Northwestern Mut. Life Ins. Co., 1935, 184 Wash. 431, 51 P.2d 390; Hopkins v. Barlin, 1948, 31 Wash.2d 260, 270, 196 P.2d 347.

We come now to a consideration of the contention most vigorously stressed by the grantor, i. e., that the consideration for the covenant consisted of the relinquishment of her right of action for damages for trespass and removal of lateral support arising from the alleged excavation made by the grantee upon grantor's property.

It is well settled that the surrender of or forbearance from asserting a legal claim on which there exists a reasonable possibility of recovery is sufficient consideration for a promise. Nicholson v. Neary, 1914, 77 Wash. 294, 137 P. 492; Sweeny v. Sweeny Inv. Co., 1939, 199 Wash. 135, 90 P.2d 716; Opitz v. Hayden, 1943, 17 Wash.2d 347, 135 P.2d 819; 1 Restatement, Contracts, 83, § 76. However, before any act or promise (including forbearance) can constitute a consideration, it must be bargained for and given in exchange for the promise. 1 Restatement, Contracts, 80, § 75.

An annotation in 74 A.L.R. 293 states that it is well settled that mere forbearance to exercise a legal right, without any request to forbear or circumstances from which an agreement to forbear may be implied, is not a consideration which will support a promise. This statement is followed by a discussion of three categories of cases: (1) those holding that to constitute sufficient consideration for a promise, there must be a request for forbearance and an agreement to forbear; (2) those holding that where there is a request to forbear and actual forbearance, there is a consideration for a promise although there may have been no agreement to forbear, this on the theory that a unilateral contract, when established by performance, becomes as binding as a bilateral contract and hence an agreement to forbear is unnecessary; and (3) those holding that where there is a request for forbearance and actual forbearance, the agreement to forbear may be implied under certain circumstances and conditions, this on the theory that actual forbearance is evidence of an agreement to forbear and, when viewed in connection with other facts and circumstances relating to the promise, may establish an implied agreement to forbear which will be deemed to constitute sufficient consideration for the promise. The cases in categories (2) and (3) achieve the same result on different theories. We find no Washington cases in either category, but in no event could the rule applicable to either category be applied to the instant case.

The testimony discloses that, after consulting her attorney the grantor advised the grantee that the bulldozers had cut into grantor's property, but refused to discuss the matter further. Thereafter, all negotiations concerning the insertion of the covenant in the deed were conducted through grantor's attorney. The testimony does not disclose the substance of the conversations between grantee and grantor's attorney, other than that the grantee was informed that the grantor would not sign the deed unless such a clause was inserted. Grantee and her son testified that she protested against the insertion of the covenant. Grantor's attorney had no certain recollection, but conceded that grantee may have made a mild protest. We assume, as we must when a case is taken from a jury and dismissed, that the jury would have believed his testimony rather than that of grantee and her son, but there is nothing to indicate any meeting of minds on the inclusion of the covenant in the deed.

We have also considered, as though it were in evidence, a letter from grantor's attorney to the grantee which the trial court refused to admit, but it adds nothing to the evidence already before the court and has no bearing upon this issue. It is agreed that grantee was informed of facts which would have given grantor a right of action for trespass, but nowhere in the record is there any evidence that grantor asserted such a legal right or indicated to the grantee that if the covenant was not accepted such a right would be asserted. There is no scintilla of evidence that the grantee ever asked the grantor to forbear bringing an action for trespass; in fact, all that grantee ever asked of grantor was a deed in conformity with the earnest-money agreement. In the absence of evidence that an action for trespass was ever contemplated or considered by the parties, there is nothing from which an agreement to forbear from asserting such a right could be implied.

The testimony discloses that the only claim or right asserted by the grantor was her 'right' to refuse to perform the earnest-money agreement by failing to execute a deed, and the only conclusion that can be drawn therefrom is that the grantee agreed to accept the deed with the covenant in it, not to avoid any legal liability arising from the alleged invasion of grantor's property rights, but rather to obtain performance of an existing legal obligation, i. e., to obtain the deed to which she was entitled under the earnest-money agreement. This, of course, does not constitute sufficient consideration. Harris v. Morgensen, 1948, 31 Wash.2d 228, 196 P.2d 317.

We come now to a consideration of the...