Stone v. Moody

• Decision Date: 26 February 1906
• Citation: 84 P. 617,41 Wash. 680
• Parties: STONE et al. v. MOODY et ux.
• Court: Washington Supreme Court

84 P. 617

41 Wash. 680

STONE et al. v. MOODY et ux.

Supreme Court of Washington

February 26, 1906

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by Iredell S. Stone and others against H. L. Moody and wife. From a judgment for defendants, plaintiffs appeal. Reversed.

T. P. &amp C. C. Gose, for appellants.

W. H Winfree and F. L. Taylor, for respondents.

ROOT J.

Appellants owned about 3,840 acres of land in Klickitat county, upon which they lived. Respondent H. L. Moody, who up to the time in question had been unknown to the appellants, called upon them with reference to making a purchaser of said land. After examining the land and spending two or three days with them a written contract was entered into, wherein and whereby Moody agreed to pay appellants $25,000 for the land, and in lieu of interest, agreed to pay $600 additional. The terms of the payment were as follows: $100 cash, $400 February 1904, $1,000 March 10, 1904, $600 February 1, 1905, and $2,500 on the 1st day of each and every February thereafter until paid, with permission to pay the whole at any time. The contract provided that Moody should have the right to sell any part of the property, not less than one-half section at a time, whenever he desired; and it was further provided that appellants should not take any deficiency judgment, nor require any insurance, and that they would allow second party to assign the agreement if he desired. The written contract also contained the following: 'He [Moody] may draw the contract direct from the first parties hereto to such purchasers, or from himself, and the first parties agree to accept such contracts as cash payments on this contract, when either drawn to themselves or properly assigned to them, without recourse, by the second party hereto, or his assigns.' The foregoing contract was entered into on the 1st of February, 1904. Moody paid, at the time of entering into the contract, $100, and on February 9 made a further payment of $400. On the 26th of February, 1904, Moody sold to one Fred W. Heller 2,560 acres of said land, upon a contract wherein and whereby said Heller agreed to pay $22,500. Thereafter said Moody presented said Heller contract to appellants, and demanded that they give him credit for $22,500 upon his contract with them, and after considerable controversy over the matter, appellants signed upon the back of the contract the following indorsement and receipt: February 27, 1904. 'Received $22,500 on the payments mentioned within, to be paid after February 1, 1905, leaving $2,500 now unpaid, sections 33, 29, 9, the south half of the northeast quarter, the south half of the northwest quarter, and the south half of section 21--within mentioned, are hereby released from this agreement;' which receipt was signed by all of appellants. On the 9th of March, 1904, respondents paid to appellants the further sum of $1,000 on account of the purchase price. On the 9th day of April, 1904, respondents tendered appellants the further sum of $1,600, on account of said contract, and as full and complete payment of the purchase price, and demanded of appellants a good and sufficient deed to all of the remaining lands. Appellants refused to accept said money or to make said deed. They soon after instituted this action to set aside the contract made with respondent Moody.

They claim that said Moody was guilty of fraud misrepresentation, and overreaching, and that they signed the contract and the receipt hereinbefore mentioned under a mistake and misapprehension as to the contents and effect of the contract, and as to the significance and effect of the receipt. They claim that, when Moody was negotiating with them for the purchase of the property, they expressed a desire to consult an attorney and obtain legal advice, but that he dissuaded them by representing that he was a man thoroughly familiar with such transactions, accustomed to drawing contracts of sale; that he was an honest and upright Christian man, and would protect their interests fully in every respect; that he was in a hurry to get away, and delay would occasion him great inconvenience; and that there was no need of the delay or expense attendant upon going to town to consult attorneys; that he manifested every appearance of being fair, upright, and honorable, and won their confidence and trust. Appellants strenuously contend that the clause of the contract hereinbefore quoted, which refers to the acceptance of contracts as cash, was put into the contract without their knowledge and consent, and against their wishes, and that they did not know of is presence in the contract until long after its execution. In preparing the contract, a printed blank was used, covering the usual and ordinary conditions found in contracts for the sale of land, and containing spaces wherein could be written any special matters of agreement between the parties. In discussing these latter, Moody suggested the proposition of his being permitted to sell portions of the land, and to turn the contracts thus received over to appellants as cash. Appellants say, that they emphatically refused to accede to this proposition, and that Moody said that he would, therefore, not place the same in the contract; that they signed the contract without reading the same, having heard Moody read it. After the latter had made the contract of sale with and to Heller,...