Underwood v. Tew

• Citation: 34 P. 1100,7 Wash. 297
• Parties: UNDERWOOD v. TEW.
• Decision Date: 21 November 1893
• Court: United States State Supreme Court of Washington

34 P. 1100

7 Wash. 297

UNDERWOOD v. TEW.

Supreme Court of Washington

November 21, 1893

Appeal from superior court, Chehalis county; Mason Irwin, Judge.

Action by Jonathan Platt Underwood against Thomas S. Tew. From a judgment for defendant, plaintiff appeals. Affirmed.

Lichtenberg Shepard, Lyon & Denny, for appellant.

N. W Bush, J. O. Selden, and D. Allen, for respondent.

ANDERS J.

The plaintiff (appellant here) brought this action to recover the aggregate amount of three promissory notes executed by the defendant to plaintiff on May 31, 1883, at Big Rapids, Mich for $2,000, $2,250, and $2,250, respectively, with interest at 7 per cent. per annum, and due two, three, and four years respectively, after date. The complaint is in the usual form in like actions, and judgment is therein demanded for $6,500, and interest at the rate above mentioned. The defendant, in his answer, admitted the making of the notes, but denied every other allegation of the complaint. As a further answer and defense, the defendant alleged, in substance, among other things, that he received no consideration for the notes set out in the complaint; that at the time of making the notes, and as part of the same contract, the plaintiff and defendant entered into a written agreement of the same date,-a copy of which was set forth in the answer, as a part thereof,-and that no other or further consideration for the execution of the notes described in the complaint than that mentioned in the said contract passed from plaintiff to defendant, and that the plaintiff never executed, or offered to execute, any deed of the lands described in the agreement to the defendant, and never in any manner conveyed, or offered to convey, said lands to the defendant. The reply admitted the making of the agreement set out in the answer, and that the notes sued upon were given as part of the purchase price of the land, and that the defendant, at the time of the making of the contract, paid plaintiff $297.50, being interest in advance as required by said agreement, but denied that he had ever paid any further sum, and also admitted that the notes and agreement were made and the lands were situated in Michigan, as alleged in the complaint, but denied all of the other allegations of the answer. The action was begun on May 30, 1891, and the trial was had on December 5, 1892, before the court and a jury, resulting in a verdict in favor of the defendant by direction of the court.

The proof showed that the plaintiff had never tendered a deed to the defendant, or offered to perform his part of the contract by conveying or offering to convey the land, before commencing this action, or at any time. Testimony was offered by the plaintiff for the purpose of showing that the plaintiff was and always had been ready, able, and willing to perform the contract on his part, which testimony the court excluded, and, we think, properly, on the ground that it tended to prove no allegation of the complaint. It is shown by the contract set out in the answer that the plaintiff agreed to sell to the defendant certain lands therein described for the sum of $8,500, with interest at 7 per cent. per annum, payable annually on all sums remaining unpaid, payable as follows: $297.50 on the signing of the instrument, to be taken as one-half of the interest on the whole purchase price for the first year paid in advance $2,000 in one year, $2,000 in two years, $2,250 in three years, and $2,250 in four years from date; the defendant to keep the buildings insured, and pay the taxes on the land, during said time. The defendant agreed to purchase the land on said terms, paid the $297.50 to plaintiff, and gave his notes for the balance, payable as above specified. It was, in effect, stipulated in the agreement that upon the payment by the defendant of these several sums of money, with interest, taxes, and insurance premiums, punctually, and at the times therein limited, the plaintiff would cause to be made a good and sufficient deed conveying to the defendant all his right, title, interest, and demand whatsoever in and to said lands. It appears that the plaintiff was not personally present at the trial, but his deposition was produced, and such portions thereof as the court deemed material and relevant were admitted in evidence in his behalf. Speaking of the consideration for the notes in suit, the plaintiff therein said: "The total consideration moving from me...