Zackovich v. Jasmont

• Decision Date: 10 December 1948
• Docket Number: 30583.
• Citation: 200 P.2d 742,32 Wn.2d 73
• Parties: ZACKOVICH v. JASMONT.
• Court: Washington Supreme Court

200 P.2d 742

32 Wn.2d 73

ZACKOVICH v. JASMONT.

No. 30583.

Supreme Court of Washington

December 10, 1948

Department 1

Action by William Zackovich against Vera Jasmont upon who notes. From the judgment, defendant appeals.

Judgment affirmed.

Appeal from Superior Court, King County; Calvin S Hall, Judge.

Reischling & Lurie and Riddell, Riddell & Hemphill, all of Seattle, for appellant.

John Kelleher and Tracy E. Griffin, both of Seattle, for respondent.

STEINERT Justice.

Plaintiff brought suit to recover upon two promissory notes alleged to have been executed and delivered to him by the defendant, but thereafter purloined or by unlawful means regained by her. Defendant denied the allegations of the complaint with respect to the execution, delivery, and repossession of the notes, and, by way of affirmative defense, alleged that any promissory note executed by her and held by the plaintiff was without consideration and was null and void. Upon joinder of issues, the cause was tried Before a jury, which returned a verdict for the plaintiff in the full amount of the notes with accrued interest. Defendant's motion for a new trial was denied, and judgment was thereupon entered on the verdict. Defendant appealed.

At the time of the transaction out of which this lawsuit arose respondent, William Zackovich, was a widower, approximately 71 years of age. Appellant, Vera Jasmont, was a widow, of the age of 53 years. Both of these parties were natives of Lithuania, but had resided in this country for many years and had known each other socially for some time. Although each of them seems to have had considerable business experience, growing out of the acquisition and disposition of real property, neither of them could read or write English other than their own signatures.

Respondent owned a building used for stores and a hotel, located at 703 Columbia street, in Seattle. On November 9, 1943, he and appellant entered into a real estate contract, wherein respondent agreed to sell, and appellant agreed to buy, this Columbia street property, according to the description and upon the terms set forth in the contract. We shall make mention of those provisions of the agreement which are material to this controversy.

Paragraph 2 of the contract provided: 'The full purchase price of said property is and shall be the sum of Twenty-Four Thousand Dollars ($24,000.00), of which the sum of Twelve Thousand Dollars ($12,000.00) has been paid in cash, the receipt whereof is hereby acknowledged by the vendor [respondent], and the balance of Twelve Thousand Dollars ($12,000.00) shall be paid as follows: The sum of Three Hundred Dollars ($300.00) on the 25th day of January, 1944, and the sum of Three Hundred Dollars ($300.00) or more on the 25th day of each and every calendar month thereafter until the full purhase price has been paid, together with interest thereon at the rate of five (5) per cent annum. * * *' (Italics ours.)

Paragraph 3 of the contract provided that the vendee (appellant) was to have possession of the property on January 1, 1944.

Paragraph 7 provided that the buildings located on the premises should be kept insured by the vendee for a sum not less than $13,000, payable to the vendor, as the insured, with a rider showing the vendee's interest in the property, the policy or policies to be delivered to the vendor and retained by him until full payment according to the contract had been made.

Paragraph 10 contained a provision to the effect that when the vendee had fulfilled all of the conditions of the contract, a good and sufficient warranty deed would be executed by the vendor and delivered to the vendee.

Paragraph 12 recited that no modification of the contract should be valid unless endorsed thereon or attached thereto and signed by the parties.

From this point on, in the statement of the case, the evidence is, for the most part, in violent dispute, creating an issue upon which the jury was required to accept the version of the one party or that of the other, and render its verdict for the party whose evidence it believed.

The facts as borne out by respondent's evidence, and as the jury was entitled to find them from all the evidence, are as follows:

The contract here involved was drawn in duplicate and signed by the parties on November 9, 1943, in the office of Mr. Elias A. Wright, attorney for the respondent. However, neither of the signed copies was at that time delivered to the appellant. The reason for this was that appellant did not then have the money, $12,000, with which to make the down payment, as called for in paragraph 2 of the contract, quoted above. Instead, Mr. Wright handed both copies of the contract to his client, respondent, with instruction to him to deliver one copy to appellant at such time as she should make the required down payment.

During the months of November and December, 1943, and the first half of January, 1944, respondent was engaged in efforts and proceedings to evict a certain Mrs. Alice Horn, who was the lessee of the hotel premises, and who did not surrender possession thereof until January 15, 1944. Thereafter, for some weeks, respondent and appellant worked together in the hotel, getting it ready for occupancy.

In the meantime, on January 25, 1944, appellant executed and delivered to respondent her promissory note for $7,000, bearing interest at the rate of five per cent per annum, and payable on or Before one year from date thereof, as part of the purchase price and down payment on the real estate contract. On that same date, appellant took possession of the hotel premises. However, since she had not yet paid the full down payment called for by the agreement, appellant was not at that time given a copy of the contract.

After appellant had taken possession of the hotel premises on January 25th, respondent rented one of the rooms therein and occupied it as her tenant.

On March 8, 1944, respondent and appellant again met, and on that day appellant executed and delivered to respondent her second promissory note, in the sum of $7,984, with interest at the rate of five per cent per annum, payable on or Before one and one-half years from date thereof. This note covered the balance of $5,000 still owing on the down payment specified in the contract and $2,984 representing the amount of money that respondent had expended for improvements and betterments on the property between November 9, 1943, the date of the real estate contract, and March 8, 1944, the day upon which the balance of the down payment on the contract was made.

At that same time and place, respondent in turn delivered to appellant one of the two signed copies of the real estate contract, together with the bills and statements for the improvements and betterments referred to above. Thereafter, respondent, as tenant, continued to occupy a room in the hotel, paying appellant $300 in advance, for occupancy until January 8, 1945.

On November 6, 1944, appellant paid to the respondent $12,000, the balance of the total purchase price owing on the contract, and at the same time respondent delivered to the appellant a warranty deed to the property, as called for by their written agreement. The deed had been prepared a short time Before by respondent's attorney, Mr. Wright. Within a day or two after this transaction, the insurance policies covering the property were transferred from respondent to the appellant, as the insured.

The sale and transfer of the property having been fully completed in the manner above described, respondent thereafter desired some security for the two notes which appellant had previously executed. The parties discussed the matter, and appellant agreed to give a mortgage on the property which she had just purchased from the respondent. Accordingly, on December 1, 1944, they went to the office of Mr. Wright to have a mortgage drawn. Respondent brought with him the two promissory notes. What transpired at that time was described by Mr. Wright in his testimony as follows: 'They came in my office, I have a long table and I sat behind it, and Mr. Zackovich sat down on what would be my right, and Mrs. Jasmont did not sit down. Mr. Zackovich came in and said he wanted a mortgage drawn, and he took out of his pocket a note--one note--and said he wanted a mortgage drawn to cover some notes, and he pulled this note out of his pocket and handed it to me, and I just looked at--was looking at it, and saw what it was, and I saw the amount of it, and I was holding it like that (indicating) and Mrs. Jasmont, who had not sat down, reached over and grabbed it out of my hand and ran out through the door with the note. I remember the amount of the note.' A little later in his testimony, the witness stated that the amount of the note was $7,000. Mr. Wright's testimony corroborated that of the respondent with respect to appellant's conduct in Mr. Wright's office.

In a preliminary deposition given by appellant, approximately a year Before the trial, she testified that on one occasion, shortly Before she received her deed, she and respondent were in Mr. Wright's office, where she was supposed to have the deed delivered to her; that a note 'for $12,000' which she had given was there exhibited; and that an argument ensued between herself and appellant, in consequence of which she took the note and, after leaving the office, destroyed it.

At the trial, however, appellant changed this testimony, and stated that the document which she had taken from Mr. Wright's office and destroyed was not a note, but a receipt of some kind. Her testimony on that subject was evasive, contradictory, and very unsatisfactory.

Respondent further testified that, after this episode, he put the second note, the one for $7,984, in...