West & Wheeler v. Longtin

• Decision Date: 14 February 1922
• Docket Number: 16867.
• Citation: 118 Wash. 575,204 P. 183
• Court: Washington Supreme Court
• Parties: WEST & WHEELER v. LONGTIN.

204 P. 183

118 Wash. 575

WEST & WHEELER v. LONGTIN.

No. 16867.

Supreme Court of Washington

February 14, 1922

Department 2.

Appeal from Superior Court, King County; A. W. Frater, Judge.

Action by West & Wheeler, a corporation, against E. F. Longtin. Judgment for defendant, and plaintiff appeals. Reversed and remanded for new trial.

Byers &amp Byers, of Seattle, for appellant.

James Kiefer, of Seattle, for respondent.

MACKINTOSH J.

The appellant, acting as agent for James A. Taylor, sold to the respondent certain real estate of the value of $14,000, upon which the respondent made a payment evidenced by a check made payable to the appellant in the sum of $1,000. The receipt of this sum was evidenced by an earnest money receipt containing the following provisions:

'But if the title to said described premises shall be found to be good and marketable, free and clear of liens and incumbrances, and purchaser shall fail, refuse, or neglect to conclude the sale as per the terms of this receipt, then the earnest money herein receipted for shall be forfeited by said purchaser to West & Wheeler, to the extent of their agreed commission and the remainder, if any, to the owner of said premises as liquidated damages for the nonfulfillment of the terms of this memorandum,' etc.

The receipt which the appellant held showed on its face that the amount of the commission was 5 per cent. of the purchase price, to wit, $700. Before the check could be presented to the bank, payment thereon was stopped by the respondent. Appellant then began this action, which was a suit upon the check, and at the close of the appellant's testimony a motion for nonsuit was granted.

The first point for consideration is whether the action had been brought in the name of the real party in interest, under section 178, Rem. Code, which provides that 'every action shall be prosecuted in the name of the real party in interest, except as is otherwise provided by law.' It is the respondent's position that Taylor was the real party in interest, but with this contention we cannot agree. It would seem that when, by the contract between the parties, it was recognized that the appellant, in case of noncompliance by the respondent with his agreement to purchase, was to receive $700 out of the $1,000 which had been provided as liquidated damages, West & Wheeler to that extent became the real parties in interest, and that, when a check had been made payable to it, the respondent had further recognized its interest. This court has held in Harris v. Johnson, 75 Wash. 291, 134 P. 1048, that the payee named in a note which was made payable to him with full knowledge of the transaction, was the real party in interest, within the meaning of the statutory provision. The general rule is...