Sutthoff v. Maruca

• Decision Date: 26 January 1910
• Citation: 106 P. 632,57 Wash. 102
• Parties: SUTTHOFF v. MARUCA et al.
• Court: Washington Supreme Court

106 P. 632

57 Wash. 102

SUTTHOFF v. MARUCA et al.

Supreme Court of Washington

January 26, 1910

Department 2. Appeal from Superior Court, King County; W. W. McCredie Judge.

Action by J. H. Sutthoff against Nicola Maruca and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Blake &amp Williams, for appellants.

Edgar C. Snyder, for respondent.

CROW J.

This action was commenced by J. H. Sutthoff against Nicola Maruca Donatella Maruca, his wife, and James Donofrio, to rescind a contract for the purchase of real estate, and recover, with other damages, $3,000 partial payments of purchase money theretofore made. On March 21, 1907, one W. A Sutherland, plaintiff's assignor, entered into a written escrow agreement with the defendants for the purchase of two tracts of land in King county. Deeds for the separate tracts, designated 'A' and 'B,' were deposited with the agreement. The latter deed only is involved in this action. As to it the escrow agreement, in substance, provided that the defendants should perfect their title, and that Sutherland, the vendee, should make the several payments of purchase money on or before December 26, 1907. Shortly thereafter the defendants delivered an abstract of title to Sutherland, which disclosed that they (the vendors) did not have good title, but that the heirs of one Thaddeus Hanford, deceased, held the fee-simple title to a strip of land 1.32 feet wide by 165 feet in length, running directly through the premises sought to be conveyed. No title to this strip had been obtained by the defendants on December 28, 1907, and on that date Sutherland by written notice rescinded the contract, and demanded the return of $3,000 purchase money theretofore paid by him. The trial court, after making findings of fact and conclusions of law, entered judgment in favor of the plaintiff. The defendants have appealed.

Appellants' controlling contention is that the respondent's assignor was not entitled to rescind the contract and recover the partial payments theretofore made by him, without tendering to the vendors the remainder of the purchase money, which had become due on December 2l, 1907. They insist that in an action brought to rescind a contract for the sale of real estate the party who seeks a rescission must either allege and prove performance or tender of performance upon his part, or allege and prove facts showing that such performance or tender of performance would be a vain and useless act. The rule stated is elementary, as being applicable to contracts, in which final and complete payment of the purchase money and delivery of a deed of conveyance are made concurrent, dependent, and mutual acts, and is supported by the following cases cited by the appellants: Underwood v. Tew, 7 Wash. 297, 34 P. 1100; Tacoma Water Supply Co. v. Dumermuth, 51 Wash. 609, 99 P. 741; Christy v. Baiocchi, 53 Wash. 644, 102 P. 752.

It is conceded, however, that the appellants were unable to convey good title on December 28, 1907, when Sutherland notified them of his election and determination to rescind. At all times subsequent to the making of the escrow agreement in March, 1907, they had failed to procure title, and, had Sutherland tendered them all purchase money due on December 28, 1907, it would have been impossible for them to perform the contract on their part by conveying to Sutherland such a good and marketable title as he was entitled to receive. The respondent alleged: 'That defendants failed, refused, and neglected to perfect their title to said land, and that at none of the times herein mentioned, nor at any time prior to the commencement of this action have they had good and clear title to said land.' Undisputed evidence produced at the trial sustains this allegation. In fact the appellants admit that their title was defective, but insist that, in the absence of any tender of the purchase money by Sutherland they were entitled to a reasonable time after December 26, 1907, within which to perfect it. There might be some...