Coughlin v. Smith

According to my view, the terms and effects of the contract are not properly construed by the majority.

However, there are some features of the case that are all-controlling.

The notice given by respondents, as set out in the prevailing opinion, is positively nothing but a notice of forfeiture and termination of the contract. It included, also, a demand from respondents upon appellant that he fulfill his guaranty. Whatever option appellant had under the contract he could waive. He could take respondents at their word and treat the contract as rescinded, which he did. No demand was made upon him under the twenty-day provision respecting curing defaults, as provided in the contract, and appellant was in no wise bound to comply with that option in the contract when the contract had been terminated by notice and no demand made upon him under the twenty-day provision.

The majority decision is opposed to the great weight of authority and several decisions by this court.

We have held that where a party, even without right, claims to rescind a contract, if the other party agrees to the rescission, or does not object thereto and permits it to be rescinded, there is a rescission by mutual consent. Croup v. Humboldt Quartz Placer Mining Co., 87 Wash. 248, 151 P. 493. Compare, as to election by forfeiture, Blenz v. Fogle, 127 Wash. 224,220 P. 790; Sainsbury v. Wapato Fruit Cold Storage Co., 132 Wash. 455,232 P. 331. As to effect of declaration of forfeiture, see 13 C.J. 601; Woodard v. Willamette Valley Irrigated Land Co.,89 Ore. 10, 173 P. 262; and Massey v. Becker, 90 Ore. 461,176 P. 425.

It being clear that, since respondents voluntarily put themselves distinctly within the rule of those cases and texts, they should be left as they placed themselves, and the guaranty was thereby extinguished. If not, however, the Loudenback case, cited by the majority, is widely dissimilar in the contract there in suit from that here. This contract, and the situation created, fall within the decisions in Jordan v. Peek, 103 Wash. 94,173 P. 726; Duke v. Benson, 134 Wash. 495, 236 P. 77;Jones-Short Motor Co. v. Bolin, 153 Wash. 198, 279 P. 395.

For these reasons, I dissent. The judgment should be reversed.

PARKER and MAIN, JJ., concur with HOLCOMB, J.