Tombari v. Griepp, 34709

• Decision Date: 17 March 1960
• Docket Number: No. 34709,34709
• Citation: 55 Wn.2d 771,350 P.2d 452
• Parties: William A. TOMBARI and Margaret Tombari, husband and wife, Appellants, v. Reuben A. GRIEPP and Esther E. Griepp, husband and wife, Respondents.
• Court: Washington Supreme Court

Page 771

55 Wn.2d 771

350 P.2d 452

William A. TOMBARI and Margaret Tombari, husband and wife, Appellants, v. Reuben A. GRIEPP and Esther E. Griepp, husband and wife, Respondents.

No. 34709.

Supreme Court of Washington, En Banc.

March 17, 1960.

Joseph P. Delay, Spokane, for appellants.

T. G. Patterson, Spokane, for respondents.

FINLEY, Judge.

This is an appeal from a judgment on the pleadings in favor of the defendants in an action brought by the plaintiffs specifically to enforce a contract for the sale of realty.

The plaintiffs allege in their complaint that they are husband and wife, and are owners of the realty in question; that a written agreement had been entered into whereby the plaintiff husband agreed to sell and the defendants agreed to buy this realty; that, since the date of the agreement, the plaintiffs have been and are now willing and able to perform said agreement; and that the defendants have at all times refused to perform. The plaintiffs prayed for specific performance of the contract.

The defendants, answering the complaint, admit that they refused to perform the contract. They set up four affirmative defenses and allege: that neither the plaintiff nor the defendant wife had signed the purchase agreement; that the legal description in the agreement was not sufficient; that subsequent to the time the agreement to purchase was entered into, it was determined that the property in question was not suitable for the purposes originally intended by the defendants, and, as a consequence, plaintiffs and defendants orally agreed to substitute other property owned by plaintiffs; and lastly, that the plaintiffs have not performed the contract and are unable to do so. Plaintiffs' demurrer to these affirmative defenses was overruled.

Plaintiffs' reply to defendants' answer admits that plaintiff wife had not signed the purchase agreement; but it further alleges that plaintiff wife was and now is ready, willing and able to consent in writing to said sale. Plaintiffs deny the matter contained in the other three affirmative defenses.

Defendants thereafter filed a motion for judgment on the pleadings on the ground that plaintiffs' complaint and reply raise no material issue and on their face show no cause of action existing for specific performance. The trial judge dismissed plaintiffs' complaint and granted the defendants' motion for judgment on the pleadings. Plaintiffs have appealed.

The trial court based its decision on the fact that appellant wife did not sign the purchase agreement, and that, as a consequence, had the respondents brought this action for specific performance, appellants would have been able to avoid the contract. The trial court relied on Wagner v. Peshastin Lumber Company, 1928, 149 Wash. 328, 270 P. 1032, 1037, wherein this court quoted from Pomeroy's Specific Performance of Contracts (3d ed.), § 165, as follows:

"* * * if the right to the specific performance of a contract exists at all, it must be mutual; the remedy must be alike attainable by both parties to the agreement."

The trial court concluded that the contract must be such that at the time it is entered into it is enforcible by either of the parties against the other.

In holding that a plaintiff, who is ready, willing and able to perform, but who, prior to the commencement of suit, could not himself have been compelled to perform, may obtain specific performance of a contract for the sale of land, Judge Cardozo, writing for the majority in Epstein v. Gluckin, 1922, 233 N.Y. 490, 135 N.E. 861, 862, made the following interesting observation:

'If there ever was a rule that mutuality of remedy existing, not merely at the time of the decree, but at the time of the formation of the contract, is a condition of equitable relief, it has been so qualified by exceptions that, viewed as a precept of general validity, it has ceased to be a rule today * * * [Citing cases.]. What equity exacts to-day as a condition of relief is the assurance that the decree, if rendered, will operate without injustice or oppression either to plaintiff or to defendant * * *. [Citing cases.] Mutuality of remedy is important in so far only as its presence is essential to the attainment of that end. The formula had its origin in an attempt to fit the equitable remedy to the needs of equal justice. We may not suffer it to petrify at the cost of its animating principle.'

In the present case we cannot agree with the trial court's conclusion respecting the legal significance of the failure of the appellant wife to sign the contract in the first instance. In Leroux v. Knoll, 1947, 28 Wash.2d 964, 184 P.2d 564, which, like the case at bar, was an action for specific performance of a real estate contract, the plaintiff-purchaser did not sign the earnest-money receipt. The court, in granting specific performance, cited Western Timber Co. v. Kalama River Lbr. Co., 42 Wash. 620, 85 P. 338, 340, 6 L.R.A.,N.S., 397, as authority for its decision. In Western Timber Co. v. Kalama River Lbr. Co., supra, the court quoted with approval from 2 Warvelle, Vendors, p. 748:

"Equity will not direct a performance of the terms of the agreement of one party when, at the time of such order, the other party is at liberty to reject the obligations of such agreement; yet, as in a case where an agreement which the statute of frauds requires to be in writing has been signed by one of the parties only, or when the contract, by its terms, gives to one party a right to the performance which he does not confer upon the other, upon the filing of a bill for enforcement in equity by the party who was before unbound, he thereby puts himself under the obligation of the contract. The contract then ceases to be unilateral; for by his own act the unbound party makes the contract mutual, and the other party is enabled to enforce it."

So, in the instant case, when the appellant wife joined in the action, the contract became mutually binding upon the parties.

Contracts which convey or encumber community realty and which the wife does not sign are not void. They are merely voidable, and it is the wife who has the power of avoidance. She may, as she wishes, either accept or reject the voidable action of her husband. Stabbert v. Atlas Imperial Diesel Engine Company, 1951, 39 Wash.2d 789, 238 P.2d 1212. In the case at bar the wife, by joining with her husband in bringing this action for specific performance, has chosen to accept and ratify the voidable action of her husband.

Respondent, however, urges that, even if the absence of appellant wife's signature from the contract is of no significance, in view of her present willingness to perform as evidenced by the fact that she has joined her husband in bringing this action, the contract is still not specifically enforcible for the reason that the appellants have an adequate legal remedy. However, according to the overwhelming weight of authority, a vendor, as well as a vendee, may obtain specific performance of a contract for the sale of land. See First National Bank of St. Johnsbury v. Laperle, 1952, 117 Vt. 144, 86 A.2d 635, 641, 30 A.L.R.2d 958, in which it was said:

'The defendant maintains that a decree for specific performance of a contract for the sale of land cannot be granted the vendor as it has a plain, adequate and complete remedy at law by a judgment for the agreed purchase price of the property, or, as in the present case, for the balance thereof. This claim presents the most important question for decision for we have no case wherein this point has been raised and determined. A thorough search of the authorities convinces us that it is held or considered with scarcely any dissent that specific performance of such a contract is granted in favor of the vendor as freely as in favor of the vendee though the relief actually obtained is only the recovery of money. Pomeroy Eq.Jur. 4th ed. § 2169; 49 Am.Jur. 110; 58 C.J. 1029, 1030; Restatement, Contracts, § 360; Id. page 682, illustration 8; Annotation 65 A.L.R. at page 40 et seq. For illustrative cases see Maryland Clay Co. of Baltimore v. Simpers, 96 Md. 1, 53 A. 424; Kahn v. Orenstein, 12 Del.Ch. 344, 114 A. 165; Woodruff v. Germansky, 233 N.Y. 365, 135 N.E. 601; Old Colony R. Corp. v. Evans, 6 Gray 25; Jones v. Newhall, 115 Mass. 244; Staples v. Mullen, 196 Mass. 132, 81 N.E. 877; Clark v. Cagle, 141 Ga. 703, 82 S.E. 21, L.R.A.1915A, 317; Morgan v. Eaton, 59 Fla. 562, 52 So. 305; Freeman v. Paulson, 107 Minn. 64, 119 N.W. 651; Cathcart v. Robinson, 5 Pet. 264, 8 L.Ed. 120; Hodges v. Kowing, 58 Conn. 12, 18 A. 979, 981, . In the case last cited it is said, 'The cases on this question are all one way."

II Restatement of the Law, Contracts, 643, § 360 c., explains the rule as follows:

'c. Before conveyance has been made by the vendor his remedy in damages is not an adequate one. He can not get judgment for the full price, because he still has the land. His damages are usually measured by the contract price less the value of the land retained; but the land is a commodity that has no established market value, and the vendor may not be able to prove what his real harm will be. Even if he can make this proof, the land may not be immediately convertible into money, and he is deprived of the power to make new investments. Prior to getting a judgment, the existence of the contract, even though broken by the vendee, operates as a clog on salability, so that it may not be possible to find a purchaser at any fair price. In addition, the fact that specific performance is available to the vendee is of some weight, because of the rule as to mutuality of remedy (see § 372(2)).'

We have previously held that the vendor of land may maintain an action to compel payment of the contract price upon default by the vendee; or, he may instead sue for damages and keep the land. Stevens v. Irwin, 1925, 132 Wash. 289, 231 P. 783. We have further indicated that, if the vendor chooses the first of...