Wormward v. Taylor

Decision Date11 July 1950
Docket NumberNo. 7590,7590
PartiesWORMWARD v. TAYLOR et al.
CourtIdaho Supreme Court

Rehearing Denied Sept. 98 1950.

T. P. Wormward, Kellogg, Harry Kinsey, Coeur d'Alene, R. Max Etter, Spokane, Wash., for appellant.

Robert E. Brown, John J. Peacock, Kellogg, for respondents.

TAYLOR, Justice.

December 31, 1947, appellant, plaintiff below, brought suit to quiet title to a city lot in Kellogg, claiming by adverse possession and the payment of taxes 'to own the same in fee against the whole world.' The court found that plaintiff's title was good as against all except defendant E. W. Ryckman. As to him it found, substantially as alleged in his cross complaint, that in the month of November, 1938, the plaintiff and Ryckman entered into an agreement by the terms of which Ryckman (a plumber, then engaged in furnishing labor and materials to the plaintiff in various residential rental properties owned by plaintiff in Kellogg) agreed to furnish labor and materials, as requested by plaintiff, to the amount of $300, for which the plaintiff agreed to sell and convey the lot in question to Ryckman; that the price was fair and reasonable; that plaintiff gave defendant Ryckman possession of the lot and the defendant furnished labor and materials in the sum of $356.24; that in the months of June and July, 1939, the defendant constructed a plumbing shop on the property contracted for at a cost of $307.08; that defendant remained in continuous possession of the property until July, 1946, when, in his absence, the plaintiff took possession and rented the premises to another for use of a plumbing shop; that on several occasions between November, 1938, and July, 1946, the plaintiff advised the defendant that he would prepare the necessary papers to convey the property to the defendant, and although requested to do so, never delivered any conveyance; that no accounting was ever had between the parties as to the amount of materials and services rendered by defendant, or of rent collected, or taxes paid, by plaintiff, and that there is no evidence to show that the plaintiff sustained any loss or damage in the transaction. Upon these facts the court concluded that the defendant Ryckman is entitled to a conveyance from the plaintiff and made and entered its decree accordingly.

The plaintiff first assigns the insufficiency of the evidence to sustain the findings. In a case involving an oral contract to convey realty, this court has held that the evidence to sustain such a contract must be clear, convincing and certain, Johnson v. Albert, 67 Idaho 44, 170 P.2d 403; also that this rule is to be applied primarily by the trial court, Jones v. Adams, 67 Idaho 402, 182 P.2d 963. The evidence supporting the contract in this case is of the quality required by the rule. Neither is the contract subject to the objection that its terms are uncertain. The property is specifically identified. The price and method of payment are established. The only element of uncertainty concerns the time for performance. However, since the defendant was currently performing services and furnishing materials, the contract will be construed as requiring performance within a reasonable time. 49 Am.Jur., Specific Performance, par. 27, page 41. The defendant completed performance in 1939, which, considering the continuous open account dealings between these parties, appears to be full compliance with this requirement.

The contract, though oral, having been fully performed by the purchaser and the purchaser having been given possession by the seller and having made valuable improvements on the property, the statute of frauds is satisfied and the purchaser is entitled to specific performance in equity. I.C. secs. 9-503 and 9-504. Chatterton v. Luker, 66 Idaho 242, 158 P.2d 809; Jones v. Adams, 67 Iadho 402, 182 P.2d 963; Wood v. Hill, Idaho, 212 P.2d 391; Grice v. Woodworth, 10 Idaho 459, 80 P. 912, 69 L.R.A. 584, 109 Am.St.Rep. 214; Coughanour v. Grayson, 19 Idaho 255, 113 P. 724; Wolf v. Eagleson, 29 Idaho 177, 157 P. 1122; 101 A.L.R. note page 1056.

The appellant assigns as error the failure of the court to find that the lot was the community property of himself and his wife. No evidence was introduced by either party as to whether the property belonged to the community estate, except that appellant's wife, Marie Wormward, while on the stand as a rebuttal witness for the plaintiff, testified that she and the plaintiff were married in 1910 and had since continuously lived together as husband and wife. This, of course, covered the period of time during which the property was acquired by the plaintiff. We assume this testimony would be sufficient to raise the presumption that the property belonged to the community. However, that question is not before us. The plaintiff alleged that he was the owner 'in fee against the whole world', thus taking the position that there was and is no outstanding interest, right or title in any other. Malone v. Peay, 157 Tenn. 429, 7 S.W.2d 40; Arnd v. Lerch, 162 Md. 318, 159 A. 587; United States v. Hyde, D.C., 132 F. 545; Black's Law Dictionary. From such a complaint, the defendant, Ryckman, would be justified in assuming that the plaintiff claimed the property as a part of his separate estate. In his cross-action he did not seek to make Mrs. Wormward a defendant, and the cross-complaint the plaintiff filed only a general denial. If the lot was in fact community property, it became the plaintiff's duty, as manager of the community estate, to plead that defense. Not having done so, the issue was not raised by the pleadings and it appears from the record that Mrs. Wormward's testimony as to the marital status was not intended to inject the issue into the trial. The case was tried by both parties and determined by the court upon the theory that the lot was the separate property of the plaintiff. ...

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27 cases
  • Suchan v. Rutherford
    • United States
    • Idaho Supreme Court
    • January 14, 1966
    ...stated by the courts, but there are so many exceptions, especially with respect to the obligation, that the rule Cf. Wormward v. Taylor, 70 Idaho 450, 221 P.2d 686 (1950). So in this case the fact that specific performance would have been available to plaintiffs, as vendees, had defendants ......
  • Gayhart v. Schwabe
    • United States
    • Idaho Supreme Court
    • May 2, 1958
    ...721; Dawson v. Salt Lake Hardware Co., 64 Idaho 666, 136 P.2d 733; Kunkle v. Clinkingbeard, 66 Idaho 493, 162 P.2d 892; Wormward v. Taylor, 70 Idaho 450, 221 P.2d 686; Laidlaw v. Barker, 78 Idaho 67, 297 P.2d 287. See also, Cook v. Lammy, 73 Idaho 445, 253 P.2d The court's instruction, cove......
  • Melgard v. Moscow Idaho Seed Co.
    • United States
    • Idaho Supreme Court
    • December 3, 1952
    ...be established by parol evidence. Pittock v. Pittock, 15 Idaho 426, 98 P. 719; Reid v. Keator, 55 Idaho 172, 39 P.2d 926; Wormward v. Taylor, 70 Idaho 450, 221 P.2d 686. The judgment is affirmed with costs to GIVENS, C. J., and PORTER, THOMAS and KEETON, JJ., concur. ...
  • Killinger v. Iest
    • United States
    • Idaho Supreme Court
    • May 31, 1967
    ...v. Mead, 86 Idaho 155, 383 P.2d 834; Cox v. Cox, 84 Idaho 513, 373 P.2d 929; Smith v. Shinn, 82 Idaho 141, 350 P.2d 348; Wormward v. Taylor, 70 Idaho 450, 221 P.2d 686; Webster v. Potlatch Forests, 68 Idaho 1, 187 P.2d 527; Miller v. Donovan, 11 Idaho 545, 83 P. Secondly, the provision of I......
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