Woodward v. Davidson

• Decision Date: 14 February 1907
• Docket Number: 1,395.
• Citation: 150 F. 840
• Parties: WOODWARD v. DAVIDSON et ux.
• Court: U.S. District Court — Western District of Washington

150 F. 840

WOODWARD v. DAVIDSON et ux.

No. 1,395.

United States Circuit Court, W.D. Washington, Northern Division.

February 14, 1907

H. H Field, Blaine, Tucker & Hyland, and Hughes, McMicken, Dovell & Ramsay, for complainant.

William Martin, for defendants.

HANFORD District Judge.

This is a suit to compel specific performance of a written contract signed by the defendant J. D. Davidson, for the sale of four lots in the plat of the Seattle tide lands, for the price of $20,000, less a broker's commission of $1,000. The contract is definite and clear in describing the property sold, and in specifying the price to be paid, and the terms and conditions essential to entitle the purchaser to a complete transfer of the title, and it has been clearly proven that the contract was executed by J. D. Davidson, and that at the time of executing it he received the sum of $1,000 as earnest money and part payment for the property and that a few days after executing the contract in performance of one of the conditions on his part he delivered an abstract of the title. It is also a conceded fact in the case that a few days after delivering the abstract of title Davidson offered to return the $1,000, which he had received as earnest money, and gave notice that he would not convey the property under the contract. The important stipulations in the contract are as follows:

'The balance of the purchase price, amounting to nineteen thousand dollars, to be paid on or before the 25th day of June, 1904 less a commission of five per cent. (5%) on the total purchase price. * * * If the title to said premises is not good or cannot be made good within thirty days, this agreement is void, and the earnest money receipted for shall be refunded. But if the title to said premises is good, and the purchaser neglects or refuses to comply with any of the conditions of this sale within thirty days after the delivery of the abstract, then the earnest money receipted for shall be forfeited to J. D. Davidson, the owner of said premises, and this contract shall thereupon become null and void. The property is to be conveyed by a good and sufficient deed of conveyance, free and clear of all liens and incumbrances, to date hereof of every nature whatsoever, except assessments for street improvement purposes, which said assessments, if any, are to be assumed by the purchaser.'

The property being tide land; that is, land over which the tide ebbs and flows, is subject to an expense for filling to make it available for use. The contract contains a further stipulation that the purchaser assumed the whole of this expense, including any interest that may have been paid by the seller on bills for filling. Young & Paine are named in the contract as the purchasers, and it is also a conceded fact in the case that Young & Paine are a firm engaged in business as real estate brokers, and that, at the time of executing the contract, J. D. Davidson was informed that they were not buying the property for themselves, but were making the purchase under an order from another real estate broker, and that they were not at liberty to disclose the name of the real purchaser.

The defendants were married at the time when the contract was executed, and, as Mrs. Davidson did not sign the contract, one of the defenses relied upon is that the contract is void, for the reason that, under the laws of this state, a contract to sell community real estate is void if not assented to by both members of the marital community. The chief controversy in the suit is whether the property was in fact community property of the defendants. Other material facts, affecting this main controversy, will be stated after I have disposed of the minor points included in the contentions of the defendants.

One of these contentions is that Mrs. Davidson is not a party to the contract, and therefore not a proper party defendant in this suit; for the reason that she cannot be required to convey any interest which she may have in the property to the plaintiff. It is the opinion of the court that this contention cannot be sustained. It appears by the pleadings and the arguments that there is a real controversy as to whether or not the property, which J. D. Davidson contracted to sell as owner thereof, was his separate property, or community property of himself and wife, and the question as to the validity of the contract, and the right of the complainant to have it enforced by a judicial decree, comprehends that controversy. Although Mrs. Davidson is not a party to the contract, she is a party to the controversy, and therefore entitled to have her day in court. The complainant does not ask for a decree, requiring Mrs. Davidson to execute a conveyance, but disputes her claim to a proprietary interest in the property, and has made her a defendant, for the purpose of obtaining a decree, which will be an estoppel against the assertion of such claim on her part.

Another contention of the defendants is that all the questions which the complainant is attempting to litigate in this suit are res judicata, by reason of previous litigation involving the same questions between the same parties in the superior court of the state of Washington for King county. It is the opinion of the court that the defendants' pleadings, as well as the evidence, are insufficient to support this claim. There is no averment in the cross-bill that there was a final judgment on the merits rendered by the superior court, and the record of the suit in the superior court introduced in evidence shows that the suit was, on plaintiff's motion, dismissed without prejudice, and that there was no decision on the merits of the controversy. That kind of a dismissal of a suit does not constitute an estoppel. 24 Amer. & Eng. Encyc. Law (2d Ed.) pp. 803-806, and authorities cited in notes on pages 804-806.

The contract was not signed by the purchaser, nor in his behalf, and that failure is assigned as ground for asserting that the contract is void for want of mutuality. The argument on this point is based entirely upon a popular fallacy that a vendor's executory contract to sell real estate cannot be specifically enforced if the vendee is not obligated to consummate the purchase. The fallacy consists in the failure to observe the distinction between a mere option given without consideration, which, in legal effect, is nothing more than an offer which may be withdrawn at any time before the vendee tenders performance of the conditions of the option, and a contract to sell, made immediately obligatory by the giving and acceptance of a valuable consideration, as in this instance, where part of the purchase price was actually paid at the time of the execution of the contract, and which, by the terms of the contract, was to b e forfeited to the vendor if the vendee defaulted in payment of the balance of the purchase price within a specified time. An option to buy real estate given for a valuable consideration is, in the eyes of the law, sacred as any other lawful contract, and is enforceable by a suit in equity. 21 Amer. & Eng. Encyc. Law (2d Ed.) pp. 928, 930, 935; 26 Amer. & Eng. Encyc. Law (2d Ed.) p. 31; Watts v. Kellar, 56 F. 1, 5 C.C.A. 394; Willard v. Tayloe, 8 Wall. 557, 19 L.Ed. 501.

The defendants' brief contains an elaborate argument to establish the proposition that the contract may be avoided for fraud, in this: That Young & Paine acted in a dual capacity as agents for Davidson, and as agents for the purchaser. A clear statement of the facts showing the relationship of the parties is all that will be necessary to refute this argument. Young & Paine did not make the contract for Davidson, nor assume any authority to sell his property nor control his action. The evidence proves affirmatively that Davidson is a man of mature years, and possessed of at least ordinary business intelligence and resolution, and all the pretences that his will in the matter was overcome by undue pressure exerted by Young & Paine are disproved by a preponderance of the evidence. In fact, there is no competent evidence tending to sustain these pretences. The leading questions propounded by his attorney in an effort to establish these conclusions were objected to, and the objections have been sustained by the court. Young & Paine were real estate brokers. Previous...