Hay v. Long

• Court: Washington Supreme Court
• Writing for the Court: CHADWICK, J.
• Citation: Hay v. Long, 78 Wash. 616, 139 P. 761 (Wash. 1914)
• Decision Date: 25 March 1914
• Parties: HAY v. LONG et al.

139 P. 761

78 Wash. 616

HAY v. LONG et al.

Supreme Court of Washington

March 25, 1914

Department 1. Appeal from Superior Court, Benton County; O. R. Holcomb Judge.

Suit by Angus Hay against T. V. Long and others. From a judgment for plaintiff, defendants appeal. Reversed with instructions to dismiss.

Moulton & Henderson, of Kennewick, for appellants.

Linn &amp Boyle, of Prosser, for respondent.

CHADWICK J.

The plaintiff and defendants Long are owners of adjoining lots in the unincorporated town of White Bluffs, Wash. A frame store building stands upon each lot, with an intervening space of five feet. This space was utilized by plaintiff, who had put a plate rail along the side of each building, with boards cut of sufficient length to reach from one building to the other. This was covered with roofing. It was inclosed at the front and back, and was occupied by plaintiff for storage purposes. One Athow was attorney in fact for the defendants Long at all times prior to the 16th day of May, 1912. It is claimed by plaintiff, and the court so found, that on the 7th day of May, 1912, Athow negotiated with plaintiff for the lease of the building owned by defendants; that for reasons best known to themselves, plaintiff demanded and it was agreed that the lease be taken in the name of Mrs. Athow; that thereafter, on the 12th day of May, 1912, a written lease of the property was made by Athow as attorney in fact for the defendants and delivered to him; that on the 13th day of May the lease was assigned by Mrs. Athow; that the instruments were immediately forwarded for record in the office of the county auditor. The lease was recorded on the 27th day of May, and following the execution of the lease and its assignment, the plaintiff put some kindling stuff and bee material in the building, and subsequently stored other property. At these times Athow had notice that the Longs might dispose of the property, and had telegraphed them on May 12th: 'I have rented building--for one year letter will follow--beware.' On the 13th day of May the defendants Long executed a revocation of their power of attorney to Athow, and forwarded it to the county auditor, where it was recorded on the 15th. The lease was returned to Athow by the county auditor, and thereafter Athow sent it back to him with the assignment and with directions to record the assignment. Acting upon the theory that the lease was voidable, defendants Long employed the defendant Beautrow to move the building to a new town site near by the town of White Bluffs. Beautrow began his work of removal, and in so doing tore the roof between the buildings loose from the Long building, whereupon plaintiff brought this action to restrain the removal of the building, and for damages. The court found that the lease was executed in good faith, and was valid and binding upon the defendants Long, made the restraining order theretofore issued permanent, and entered a judgment for damages in the sum of $25. From this decree defendants have appealed.

Several assignments of error are made, but, as we view the case, it will be unnecessary to discuss all of them. We think the court erred in holding that a lease valid and binding on the parties was entered into on the 7th day of May. It may be, although it is extremely doubtful, that the parties had some negotiations at the time, but the contract was not formulated, nor did it become binding, as between Athow and plaintiff, untile it was executed on the 12th day of May. If the contract was made, as respondent says it was, on the 7th day of May, and the lease written on May 12th in Mrs. Athow's name to suit his convenience in some collateral matter, it would seem that it would have detailed the terms of the contract as both he and Athow say they were agreed upon, that is, that he was to pay $5 per month in any event and $15 in the event that he used the building for a store. The lease as written is for $5 per month without qualifications. The promise to pay the $15 appears for the first time in the assignment. It seems to us that this circumstance furnishes strong presumptive proof that the lease does not evidence the contract between plaintiff and Athow, and that terms were not agreed upon on May 7th, or at any time prior to the 13th.

Another circumstance that tends to detract from plaintiff's position is that he says that it was understood on the 7th, and on the 12th when the lease was written, that it should be taken in the name of Mrs. Athow for the reason that he hoped to secure some financial assistance from relatives in the East; that they were exacting, and his interests demanded that his name be concealed. If we admit that the reason urged has any force whatever, we are met by the fact that, on the very next day after he was careful to conceal his identity as a contracting party, he reveals it by taking an assignment in his own name, and offering it, as he contends, along with the lease, and certainly within a few days thereafter, for public record. No reason is assigned for this by plaintiff. This fact lends some color to the theory of the appellant that the assignment was an after-thought, and was executed because of the possible voidability of the original lease.

That a sale by an agent to himself, either directly or through the intervention of a third party, is voidable is so well settled as to require no citation of authority. In the instant case Athow leased to his wife. There is nothing in the record to show that Mrs. Athow has, at any time, done business in her own name or upon her own account. Under the community property statutes, her act was presumptively the act of the community and that presumption has not been rebutted. Main v. Scholl, 20 Wash. 201, 54 P. 1125; Johns v. Clother, 139 P. 755. The lease made by Athow was a lease to the community, and was therefore a lease to himself. But if it were not so, it has been held that a contract made by an agent with his wife is voidable at the instance of a cestui que trust or a principal, 'not on the ground of coverture, but of her relationship to the trustee. It would be evidence of unfairness quite as much as if the sale were made to the trustee himself, and falls within the spirit of the rule which forbids his own purchase.' Dundas' Appeal,...