Wadham v. McVicar

• Decision Date: 21 April 1921
• Docket Number: 16161.
• Citation: 115 Wash. 503,197 P. 616
• Parties: WADHAM et ux. v. McVICAR et al.
• Court: Washington Supreme Court

197 P. 616

115 Wash. 503

WADHAM et ux. v. McVICAR et al.

No. 16161.

Supreme Court of Washington

April 21, 1921

Department 1.

Appeal from Superior Court, Stevens County; D. H. Carey, Judge.

Action by Charles V. Wadham and wife against E. A. McVicar and others. From decree for defendants, plaintiffs appeal. Judgment affirmed.

Oscar Cain, of Spokane, for appellants.

L. B Donley, of Colville, for respondents.

BRIDGES J.

The purpose of this action was to quiet the title to certain real estate in Stevents county, Wash. By answer the defendants sought to require the plaintiffs to perform a certain written contract concerning such lands. The court made findings conclusion, judgment, and decree in favor of the defendants. Plaintiffs have appealed. There is very little dispute in the facts, which are as follows: The appellants, being the owners of the lands mentioned, entered into a written agreement with the respondents, dated April 1, 1915, for the sale by the former to the latter of such lands. The agreed purchase price was $4,582, $200 of which were paid down in cash. The deferred payments were to be made as follows: On the 1st of September, 1915, $500 on the principal and interest on the deferred payments, and on or before July 1 of each subsequent year a like amount of $500 on the principal and the accrued interest on the deferred payments, until the principal sum should be reduced to $2,500, at which time the defendants were to be permitted to give their note for such balance and secure the same by a mortgage upon the property sold, and at the same time receive a deed to the property from the appellants. At the time of the execution of the contract, the appellants executed a deed to the property conveying the title to the respondents. This deed and a copy of the contract were put in escrow with the Spokane & Eastern Trust Company, of Spokane, to which all payments were to be made. The respondents were to pay the 1915 and all subsequent taxes. The contract also provided that:

'It is further provided that time of payment is of the essence of this agreement, and in case second parties [respondents] do not make the payments hereunder at the time herein specified that the first parties [appellants] may go to said Spokane & Eastern Trust Company and withdraw said deed and this agreement, and thereupon all sums paid by second parties hereunder shall be forfeited unto first parties, and all rights hereby created to second parties, or either of them, shall cease and terminate.'

On the due date in 1918, to wit, July 1, the respondents mailed to the escrow holder their check drawn on a Seattle bank for the amount necessary to reduce the principal sum of $2,500, and at the same time sent to the escrow holder their promissory note and mortgage as provided in the agreement. This check did not reach the escrow holder until about the 4th of July. Its payment was refused by the Seattle bank through an error which it is not necessary to explain. On the 11th of July the respondents, learning for the first time that their check had not been honored by the bank upon which it was drawn, sent to the escrow holder the necessary amount of money by express. However, one or two days before this money was received by the escrow holder the appellants, contending that the payments had not been made as provided by the agreement, withdrew the contract and the deed from the escrow holder, and thereafter...