Voight v. Fidelity Inv. Co.

• Decision Date: 15 June 1908
• Parties: VOIGHT v. FIDELITY INV. CO.
• Court: Washington Supreme Court

96 P. 162

49 Wash. 612

VOIGHT v. FIDELITY INV. CO.

Supreme Court of Washington

June 15, 1908

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by J. T. Voight against the Fidelity Investment Company for specific performance of a contract for the sale of land. From a judgment of nonsuit, plaintiff appeals. Affirmed.

John E Humphries and Geo. B. Cole, for appellant.

E. R York, for respondent.

DUNBAR J.

This is an action by the appellant against the respondent to enforce specific performance of a contract for the sale of real estate. The contract of sale upon which the complaint was based was made and entered into on the 8th day of September 1903, and was, in substance, to the effect that the defendant contracted to sell certain land in Kind county to the plaintiff for the sum of $1,000, $100 to be paid down at the office of the defendant, $100 on the 10th day of each and every sixth month thereafter until the sum of $1,000 had been paid in full, together with interest at the rate of 7 per cent. per annum on all unpaid sums, interest to be paid semiannually, the plaintiff contracting to pay all taxes and assessments which would thereafter be lawfully imposed on said premises beginning with the taxes for the year 1903, the year in which the contract was made, providing that all improvements should remain upon the premises described, and providing that, in case of the punctual payment by the plaintiff of the payments therein stipulated to be made, the defendant would execute a deed to the plaintiff for the land described, providing specially that time was declared to be of the essence of the contract. The complaint set forth, in substance, the terms of the contract, and alleged that plaintiff had expended more than $200 upon the land described; that he notified the defendant that he was ready, able, and willing to comply with the terms of the contract on his part; and that the defendant failed and refused to comply with the contract. Plaintiff demanded that the defendant be required to deed to plaintiff the land in dispute, and that, on its failure to do so, he have judgment against it for $500 profit which he claimed, and for $200 expenses and interest, and for the $100 paid, with interest from time of payment. The answer admitted the execution of the contract, alleged that the plaintiff had wholly failed and refused to make the payments specified in the contract, or to pay the taxes specified therein, and denied many of the matters set up in the complaint. It also alleged the abandonment of the premises and of the contract by the plaintiff. The reply put in issue the affirmative matters of the answer. Upon the trial of the cause by the court, and upon the completion of the introduction of testimony by the plaintiff, defendant moved for a nonsuit, which nonsuit was granted by the court. Judgment of nonsuit was entered, and appeal follows.

The appellant relies upon the case of Stein v. Waddell, 37 Wash. 634, 80 P. 184, where it was held that the covenants in a contract of sale of real estate on the part of the vendors to convey the property and take back a mortgage upon the payment of the second installment, and on the part of the vendees to make such payment, are...