DocketNumber: No. 8886
Judges: Morris
Filed Date: 1/5/1911
Status: Precedential
Modified Date: 10/19/2024
On' June 17, 1904, the Walkers and Robert McMurchie, trustee, entered into an agreement for the sale and purchase of certain lands in Snohomish county. The purchase price was $2,750. Of this amount $350 had been paid and received as earnest money, and the balance was to be paid as follows: $337.50 on the day of the date of the contract; $412.50 on or before August 1, 1905, and $412.50 on or before each succeeding August 1, until the full purchase price had been paid. Time was made of the essence. On July, 1904, $337.50, by the terms of the contract due June 17 previous, was paid, and on December 6, 1905, $180.30, balance due August 1 previous, after deducting the agreed price of an improvement, was paid. No other payments were made. On July 2, 1904, McMurchie, trustee, assigned the contract to the Snohomish Berry & Bruit Com
Subsequently to December 6, 1905, neither party seems to have paid any attention to the contract, until in April,' 1909, Walker deposited the contract in a bank and instructed its cashier to demand the payment of interest, and the bank did in writing so demand of McMurchie, who was at the time a trustee of the company, but taking no active part in its management. The general manager and treasurer of the company was H. S. Wright, and after the bank made its demand of interest of McMurchie one of its officers requested McMurchie to see Wright and have him pay the interest. This it appears was not communicated to Wright; nor is it shown he had any knowledge of the previous demand of McMurchie. No interest was paid and on May 11, 1909, a written notice of forfeiture was served on McMurchie, addressed to him as trustee. On May 14, the company tendered to Walker $2,300, the amount then due on the contract, which was refused as coming “too late,” and on May 17, the complaint in this action was served on Wright. The complaint seeks to declare a forfeiture, and the company by its answer asks for a specific performance upon payment of the amount found due. Upon the trial the court found in favor of appellants, holding there was'no demand for any of the deferred payments prior to the commencement of the action, and that respondents had waived the time feature of the payments and the right to forfeit, and ordered a decree
The basis of the court’s finding, that there was a waiver of the time feature of the contract, was its finding from the evidence that, after the company went into possession of the land, and had expended about $1,000 in improving and cultivating it, an understanding was reached between Walker and Wright that a strict performance of the contract would be waived, and that no money need be paid thereunder until demanded by Walker. Although Walker denies such an understanding, we agree with the court that the evidence establishes its existence, strengthened by the fact that Walker lived near the land, knew at all times what was being done thereon in the way of improvement and cultivation, and from December 6, 1905, until April, 1909, made no effort to obtain any payment of either principal or interest upon the contract. Such a forbearance was the result of either an Understanding or waiver, or else it was laches. In either event, it would defeat a right of forfeiture until-a demand for payment, or other distinct notice of a purpose to enforce a forfeiture unless payment be made, and the lapse of a reasonable time to comply therewith. Equity has ever been jealous of the right of forfeiture, and has never enforced it unless the right thereto has been so clear and insistent as to permit of no denial. And when a party to a contract waives a default in its terms as to payment, he cannot again establish his right to proceed strictly thereunder, until he has given due notice of his intention to the other party. 29 Am. & Eng. Ency. Law (2d ed.), 685; Cole v. Hines, 81 Md. 476, 32 Atl. 196, 32 L. R. A. 455; Watson v. White, 152 Ill. 364, 38 N. E. 902. Such is the announced rule in this court. Douglas v. Hanbury, 56 Wash. 63, 104 Pac. 1110, 134 Am. St. 1096.
It is understood that it frequently occurs that a party to
We are therefore of the opinion that the court below was right in its findings upon the trial, and that it iyas error to grant the new trial, and the order granting same is reversed, and the cause remanded for the entry of judgment upon the findings and conclusions as made by the court.
Rudkin, C. J., Chadwick, Crow, and Dunbar, JJ., concur.