Wolley v. Butts, 2160-III

• Citation: 578 P.2d 80,19 Wn.App. 876
• Decision Date: 26 April 1978
• Docket Number: No. 2160-III,2160-III
• Court: Washington Court of Appeals
• Parties: Duane A. WOLLEY and Kim P. Wolley, husband and wife, Respondents, v. Richard L. BUTTS and Maxine M. Butts, husband and wife, Appellants.

Page 876

19 Wn.App. 876

578 P.2d 80

Duane A. WOLLEY and Kim P. Wolley, husband and wife, Respondents, v. Richard L. BUTTS and Maxine M. Butts, husband and wife, Appellants.

No. 2160-III.

Court of Appeals of Washington,Division 3, Panel Four.

April 26, 1978.

Kelly Hancock, P. S., Omak, for appellants.

Patrick J. Morrissey, Mansfield, Morrissey & Thomas, Okanogan, for respondents.

GREEN, Judge.

The trial court granted specific performance of an earnest money agreement in favor of the plaintiffs, Duane and Kim Wolley, the purchasers of a home. Defendants, Richard and Maxine Butts, the sellers, appeal.

No error having been assigned to the findings of fact, we accept them as verities.

The following findings are pertinent to this appeal:

II.

That during the week of February 15, 1976, Plaintiffs and Defendants met together at Defendants' residence, and Plaintiffs agreed to purchase from Defendants and Defendants agreed to sell to Plaintiffs (certain real property owned by the Defendants) for a cash purchase price of Fifteen Thousand and no/100 ($15,000.00) Dollars. That Plaintiff and Defendant did execute such an agreement in writing by signing a form Earnest Money Agreement . . . marked Exhibit A . . . . That prior to affixing their signatures the parties filled in the blanks of said agreement with the exception of the date, amount of earnest money, and the name of the real estate agent. That at the time of the execution of this Agreement, the parties did intend to enter into and create an agreement incorporating the terms as set forth in Exhibit A.

III.

That on February 20, 1976, Plaintiffs received a telephone call from a Frank Fulford of Frank's Realty, Brewster, Washington, who advised Plaintiff that he was employed by Defendants to represent them in the transaction and close the sale of the foregoing . . . real property according to the terms of Exhibit A, and accordingly advised Plaintiffs to come to his office for this purpose.

IV.

That on February 20, 1976, following Frank Fulford's phone call, the Plaintiffs went to his office at Brewster, Washington. Plaintiffs delivered to Frank Fulford the executed Earnest Money Receipt and Agreement, whereupon Frank Fulford inserted into Exhibit A the date of February 20, the amount of earnest money, the name of his business, and address, and signed the same as agent. Mr. Fulford then indicated that three additional copies of the agreement were necessary so that a copy could be distributed to each of the parties, himself, and the lending institution. He indicated that his copy machine was not operating, and therefore he would have to copy the original by hand in order to have sufficient copies. Frank Fulford thereupon copied the original by hand . . . on blank earnest money receipt and agreement forms, which he used in his business, and had in his possession. Upon completing the copies, Frank Fulford had Plaintiffs affix their signatures thereto, and provided Plaintiffs with the original Earnest Money Receipt and Agreement (Exhibit A) as their copy. Frank Fulford expressly represented to Plaintiffs that the copies he had made were identical to Exhibit A, and that the purpose of making the additional copies was to create duplicates of Exhibit A. That a copy of the Earnest Money Receipt and Agreement prepared by Frank Fulford is attached hereto, marked Exhibit B, and by this reference incorporated herein.

V.

The original Earnest Money Receipt and Agreement (Exhibit A) provided in Paragraph 8 thereof that the termination date of the agreement was 120 days from the date of the agreement, which would have been June 19, 1976. On the copies prepared by Frank Fulford he inadvertently inserted a period of 45 days from the date of the agreement as the termination date, which would have terminated the earnest money agreement on April 5, 1976. That said discrepancy was created by Frank Fulford inadvertently, and unknowingly and without intent or desire to modify the expiration date provided for in Exhibit A.

VI.

That pursuant to an appointment arranged by Frank Fulford, the Plaintiffs applied for financing with Columbia Federal Savings and Loan Association, Cheln (sic ) Branch, Chelan, Washington, which loan was approved on or about April 12, 1976. The Plaintiffs thereupon tendered the purchase price in full to Defendants, and requested Defendants to close the transaction pursuant to the Earnest Money Agreement (Exhibit A) whereupon the Defendants refused to accept the purchase price tendered by Plaintiffs, and to transfer the property to Plaintiffs as agreed.

VII.

That Defendants did during the week of February 15, 1976, employ Frank Fulford as their agent to represent them in the closing of the sale to Plaintiffs of the real property pursuant to the original Earnest Money Receipt and Agreement and directed Frank Fulford to contact Plaintiffs for this purpose. That Defendants did authorize Frank Fulford to represent Defendants in their transaction with Plaintiffs, and that all acts performed by Frank Fulford in the closing of the transaction including filling in the date and amount of earnest money receipt and agreement were authorized by Defendants and were within the scope of...