Finch v. Sprague , 117 Wash. 650 ( 1921 )

Tolman, J.

(dissenting) — It seems to me that the majority opinion overlooks the simple governing points in this case.

Appellant knew that respondents did not have title to a portion of the land, and knew of the arrangements by which Davenport took title thereto, and the terms of his contract with respondents, before he made the payments of June 10 and June 20, 1919. That the Davenport contract called for final payment on or before December 1, 1919, in the absence of any evidence that Davenport then declared a forfeiture, or after-wards refused to accept payment and convey, is wholly immaterial. Respondents’ notice to appellant of December 26, 1919, was clearly an attempt upon their part to claim a forfeiture which was provided for by the contract, and nothing more. As it did not by its terms accord appellant the benefit of the ten days of grace allowed by the contract, it was a complete nullity, and would have been held so to be if appellant had tendered the final payment within such ten-day period. Consequently, at the time this suit was instituted, the parties stood in the same position as they did before December 1, i. e., the contract was in full force and effect; no payment was in default, and it was wholly immaterial whether or not respondents then had title. Appellant could have tendered final payment, demanded a deed, and if respondents could not then have conveyed title, might have had recourse to such remedy as he must have contemplated as a possibility when he made the earlier payments, knowing of the title in Davenport. On the other hand, at the time this suit was brought, respondents could have tendered deeds, including the Davenport interest (and it must be borne in mind that there is no evidence tending to show that they could not then have procured the Davenport interest), and demanded the final payment within ten days under penalty of forfeiture. This, the record shows, is exactly what they did, and good title to all of the land covered by the contract having been timely tendered, and final payment not having been made, appellant has no right of action.

The judgment appealed from should be affirmed.

Mackintosh and Bridges, JJ., concur with Tolman, J.