Tenco, Inc. v. Manning, 35747
| Decision Date | 25 January 1962 |
| Docket Number | No. 35747,35747 |
| Parties | TENCO, INC., and Washington corporation, Respondent, v. Julia D. MANNING, formerly Julia D. Huschke, Appellant. |
| Court | Washington Supreme Court |
Chan, Cafferty, Bonnell & Uhlman, Seattle, for appellant.
MacDonald, Hoague & Bayless, Seattle, for respondent.
In this action, based on a real estate earnest money agreement, the trial court ordered the defendant-owner and purported vendor to convey certain real property to plaintiff-purchaser, Tenco, Inc. This appeal by the defendant-vendor followed.
Appellant, purported vendor, is a resident of Baker, Oregon, and owns real property situated in Island County, Washington, which may be legally described as follows:
'Lots 1 to 15 inclusive and Lot 40, Admiralty Heights, according to the recorded plat thereof in the Office of the Auditor of Island County, Washington, in Volume 5 of Plats, page 8.'
Lots 1 to 15, inclusive, and Lot 40 amount to approximately twenty acres. The above-referenced Admiralty Heights tract, in its entirety, comprises approximately fifty acres. 1
Appellant, desiring to sell her twenty acres, executed a listing agreement with a licensed real estate broker. One of the broker's salesmen, acting as agent for appellant, arranged for representatives of Tenco to view the property. Tenco was in the market for real property in the area, and made an offer. The salesman gave Tenco a purported legal description of appellant's property, and a document was prepared, which embodied Tenco's offer in writing and which was to become the earnest money agreement involved in this dispute.
In accordance with the terms of the contract, Tenco paid appellant the sum of one thousand dollars as earnest money. Appellant covenanted to convey title within ten days after delivery of a title report showing an insurable title. Subsequently, a title report was issued showing an insurable title relative to the property owned by appellant, and Tenco tendered the balance due. Thereupon, appellant refused to convey title, and Tenco brought this action for a decree compelling appellant to convey title to the property owned by her, and for 'such other and further relief as to the court seems just.' The property description in the complaint was taken from the title insurance report. A copy of the earnest money agreement was attached to the complaint. The agreement contained the description of the property given Tenco by appellant's agent, which was a follows:
'Beginning at the SW corner of Govt. Lot 2, Sec 27, Township 29 N, R 2 EWM, Island County, Washington, said point being a concrete monument from which the SE corner of said Lot 2 bears N 89~ 06' E 1320.87 ft., thence N 0~22' E 811.53 ft., thence S 89~38' E 30 ft., thence N 25~ 39' 30"' E 1413.28 ft. to northerly boundary of Govt. Lot 1, said Sec. 27; thence N 88~ 44' 10"' E 692.88 ft., to the NE corner of said Lot 1; thence S 0~ 31' 20"' W 2079.88 ft. to the SE corner of said Lot 2, thence S 89~ 06' W 1320.87 ft. to the true point of beginning.'
Appellant's answer admitted ownership of Lots 1 to 15, inclusive, and Lot 40 in her separate capacity; that the salesman acted as her agent; and that she had signed a written instrument designated as an earnest money agreement. As an affirmative defense, appellant alleged facts which, if proved, would amount to fraud.
Prior to trial, on a motion by Tenco for summary judgment, the court questioned whether the description by platted lots, taken from the title report and reflected in the complaint, described the same property as the metes and bounds description in the earnest money agreement. It was then discovered that the legal description in the earnest money agreement encompassed the entire fifty-acre plat of Admiralty Heights, within which appellant's twenty acres were located.
After a partial summary judgment was awarded Tenco, the case went to trial, and appellant was ordered to execute and deliver a deed to Tenco, conveying the real property owned by her as described in the complaint.
The trial court found that the contract price was not unreasonably low in relation to the market price at the time of sale, and that Tenco did not engage or participate in any kind of fraud or misrepresentation in its relations with appellant. The contention that the earnest money agreement was insufficient to satisfy the statute of frauds was rejected on the theory that the description therein was sufficient, even though additional property was described, and that
'* * * [Tenco] waived its right to object to any defect of title of * * * [appellant] to the remainder of the property in excess of the 20 acres (Lots 1 to 15, inclusive, and Lot 40, Admiralty Heights) which the parties intended to sell and buy.'
The assignments of error, according to appellant, raise the following questions: Whether Tenco had complied with all conditions of the contract before tendering the balance due; whether the contract was so unconscionably unfair and unjust as to prevent equity from granting specific performance; whether there is sufficient proof that a mutual mistake occurred; and whether the earnest money receipt and agreement is void and unenforcible under the statute of frauds.
Two of appellant's contentions can be disposed of summarily. There is substantial credible evidence in the record to support the trial court's findings that (1) Tenco had satisfactorily completed performance of the contract before tendering the balance due; and (2) that the fair market value of the appellant's property, as of the date of the earnest money agreement, was not substantially or unreasonably greater than the purchase price therein specified, and that the contract was fairly entered into. We will not disturb these findings. Guyton v. Temple Motors, Inc. (1961), 158 Wash.Dec. 825, 365 P.2d 14; Thorndike v. Hesperian Orchards, Inc. (1959), 54 Wash.2d 570, 343 P.2d 183. Therefore, appellant's contentions in this connection are not tenable on appeal.
That the wrong property description appearing in the earnest money agreement resulted from a mutual mistake is obvious from the record. Neither party was aware that the description in the agreement pertained to the entire Admiralty Heights area until the proceedings were in progress on motion for summary judgment just prior to actual full-scale trial. The complaint sought a decree compelling conveyance of only those lots owned by appellant (Lots 1 through 15, and Lot 40), which Tenco intended to purchase. The answer admitted the execution of the contract, and presented the affirmative defense of fraud. The answer set up no defense that the contract was unenforcible by reason of the statute of frauds. Subsequently, appelant admitted that she was the owner of Lots 1 through 15, and Lot 40; that these lots constituted all her real property in the vicinity; and that she intended to sell all of the land owned by her. It is, therefore, abundantly clear that the parties intended the earnest money agreement to cover Lots 1 through 15, and Lot 40, and not the entire tract of Admiralty Heights. If the intention of the parties is identical at the time of the transaction, and the written agreement does not express that intnetion, then a mutual mistake his occurred. Bergstrom v. Olson (1951), 39 Wash.2d 536, 236 P.2d 1052; Keesling v. Pehling (1950), 35 Wash.2d 624, 214 P.2d 506.
Appellant's last contention presents the crucial issue in this appeal. Is the property description contained in the earnest money agreement violative of the statute of frauds? The determination of this issue will provide the solution to the ultimate problem; namely, whether an earnest money agreement can be specifically enforced when the property description contained therein, because of a mutual mistake, actually describes property in addition to that which the parties intended to buy and...
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