Vail v. Tillman

• Decision Date: 19 June 1891
• Citation: 27 P. 76,2 Wash. 476
• Court: Washington Supreme Court
• Parties: VAIL v. TILLMAN ET AL.

27 P. 76

2 Wash. 476

VAIL v. TILLMAN ET AL.

Supreme Court of Washington

June 19, 1891

Appeal from district court, Clallam county.

Action by George W. Vail against Charles Tillman and others for specific performance of a contract to convey lands. A demurrer to the complaint was sustained, and plaintiff appeals. Reversed.

Finch, Snook & Glasgow, for appellant.

HOYT J.

Appellant by his complaint filed in the lower court sought to secure the specific performance of a contract for the purchase of certain lands therein described. The memorandum of the contract, reduced to writing, and signed by the appellees was as follows: "This is to certify that we have this day sold to George W. Vail the following acre of land to-wit, off of the north-west corner of suburban lot or block thirty-one, (31,) located on the town-site established by the U.S. government at Port Angeles, Washington Territory, for which we agree to make a warranty deed to George W. Vail and his heirs at our earliest convenience, and for which George W. Vail is to give his note, payable nine months from date and a mortgage on the land purchased to secure the payment of the note." The complaint alleged that after the making of said contract the appellees put the appellant in possession of the land in question; that appellant, with the knowledge and consent of appellees, had fenced the same, and made certain improvements thereon, and was still in the open possession thereof. It will be seen, by an examination of said memorandum, that some of the elements necessary to a perfect contract are omitted, but I am inclined to the opinion that such omissions are not sufficient to invalidate said contract, when taken in connection with such possession and improvements, as the complaint alleges on the part of the appellant. But, be this as it may, the allegations of the complaint sufficiently show that the omissions in said memorandum occurred through the mutual mistake of the parties thereto, and that the contract which was in fact agreed to by the parties, and which was intended to have been embodied in said writing, was as follows: "This is to certify that we have this day sold to George W. Vail the following acre of land, to-wit, one acre, to be taken in a square form out of the north-west corner of suburban lot thirty-one, (31,) located in the town-site established by the United States government at Port Angeles, Washington Territory, for...