Wood v. Mastick

• Decision Date: 22 July 1881
• Citation: 2 Wash.Terr. 64,3 P. 612
• Parties: WOOD v. MASTICK AND ANOTHER.
• Court: Washington Supreme Court

3 P. 612

2 Wash.Terr. 64

WOOD v. MASTICK AND ANOTHER.

Supreme Court of Territory of Washington

July 22, 1881

Error to the Third judicial district, holding terms at Port Townsend.

G Morris Haller and McNaught, Ferry & McNaught for plaintiff in error.

Struve, Haines & Leary, for defendants in error.

WINGARD, J.

On August 19, 1880, Charles E. P. Wood filed his complaint in the district court of the Third judicial district of Washington Territory, holding terms at Port Townsend, as vendor of certain real estate therein situate, in Snohomish county, in the Third judicial district, against Seabury L Mastick and Levi B. Mastick, vendees, alleging a contract in writing, made by the parties on the nineteenth day of June 1878, for the purchase of said real estate, the purchase price, $2,000, to be paid to plaintiff, June 1, 1879, said payment to be a condition precedent to the conveyance; also alleging due tender of a good and sufficient deed on June 1 1879, demand for the money on said day, non-payment thereof, and readiness to convey on part of plaintiff ever since; and, at the time of filing the complaint, a deposit with the clerk of said court of a good and sufficient deed of said premises for the defendants, and due performance of all conditions on plaintiff's part, and prays judgment for the agreed purchase price. To this complaint, after due personal service in Jefferson county, Washington Territory, defendants appeared in the action and interposed a demurrer, in substance, that the complaint does not state facts sufficient to constitute a cause of action, which demurrer was, by the court, sustained; whereupon, plaintiff, saving his exceptions, filed his amended complaint, addressed to the chancellor, alleging the same facts and praying specific performance, a judgment in personam for the agreed purchase price, and that said real estate be sold to satisfy the judgment, and for general relief. To this amended complaint defendants filed their motion to dismiss the action for want of jurisdiction of the court over the subject-matter, which was, by the court, sustained, all relief in said court refused, and final judgment entered, dismissing the cause and assessing the costs against plaintiff; to all of which plaintiff duly excepted, and seeks to have the same reversed.

The contract was set out verbatim in the complaint, and is as follows, to-wit:

"Agreement made this nineteenth day of July, A. D. 1878 between S. L. Mastick and L. B. Mastick, the parties of the first part, and Charles E. P. Wood, the party of the second part, witnesseth:

" First. That the said parties of the first part promise to buy of the party of the second part, in consideration that the said party of the second part agrees to sell all his right, title, and interest of and to those two certain parcels of land situated in the county of Snohomish, territory of Washington, described as follows, to-wit: (1) Eighty acres known as the Lane claim, on Pilchuck creek; (2) one hundred and sixty (160) acres on French slough, known as Frank Dolan's claim.

" Second. Said parties of the first part agree and promise to pay for said lands, to the party of the second part, the sum of two thousand ($2,000) dollars in gold coin in payment as follows: The whole thereof on the first day of June 1879, with interest thereon at the rate of one per cent. per month, payable on the first day of June 1879, and also pay all taxes and assessments which hereafter may be laid or imposed for any purpose whatever on said land, and the money agreed to be paid herein.

" Third. The said party of the second part agrees that upon the payment of said sum, interest, and taxes at the time herein stated, he will convey to the said parti

...