Le Marinel v. Bach

196 P. 22, 114 Wash. 651, 1921 Wash. LEXIS 675
CourtWashington Supreme Court
DecidedMarch 1, 1921
DocketNo. 16114
StatusPublished
Cited by7 cases

This text of 196 P. 22 (Le Marinel v. Bach) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Le Marinel v. Bach, 196 P. 22, 114 Wash. 651, 1921 Wash. LEXIS 675 (Wash. 1921).

Opinion

Main, J.

— This action was brought for the purpose of enforcing the specific performance of a written contract for the exchange of real estate. The defendants resisted the action, claiming that the contract was not sufficient, and further, that they were induced to enter into it by fraudulent representation. The cause was tried to the court without a jury and resulted in findings of fact, conclusions of law and a judgment sustaining the right of the plaintiffs to recover. From this judgment, the defendants appeal.

The respondents are husband and wife and were the owners of a farm consisting of approximately four hundred acres near the town of Cheney, in Spokane county. The appellants are husband and wife and were the owners of a farm consisting of approximately four hundred and forty acres in Whitman county. After certain negotiations, the following contract, dated April 5, 1919, was entered into between the parties for the exchange of the properties.

[653]*653“For and in consideration of Five Dollars, the receipt of which is hereby acknowledged, we the undersigned make you the following proposition:
“We will give you our farm consisting of 440 acres, and described as follows: The North-east quarter, and all of the South-west quarter; East half of North-west quarter, and the South-west quarter of North-west quarter, of Section Thirty-four (34), all in Township Twenty (20), Eange Forty-one (41), E. W. M. This farm will he subject to a mortgage of Fifteen Thousand ($15,000.00) Dollars, which you are to assume. You are further to give us a difference of Six Thousand ($6,000) Dollars, in bankable securities, of some kind, to he approved by us, or in case we do not approve of said securities, we hereby agree to accept the cash instead of securities. You are further to give us a certain tract of land consisting of 400 acres located about three miles from Cheney, and which I have inspected and approved of and described as follows: The South-east quarter, and the East half of North-east quarter, Section Twenty-nine (29) also South half of North-west quarter, and the North-half of South-west quarter, of Section Twenty-eight ,(28), located in Twp. Twenty-three (23), Eange Forty-one (41) E. W. M. and containing 400 acres, less rail-road right-of-way. We understand that this land is subject to an incumbrance of Eleven Thousand Five Hundred ($11,500) Dollars, which we will assume. We understand this incumbrance is in the shape of a contract, Fifteen Hundred ($1500.00) Dollars of it to he paid either November 1, 1919, or November 1, 1920, and the balance of Ten Thousand ($10,000) Dollars is to be a mortgage running for three years from the first day of May 1919, at 6%. However, at present you are to give us a contract for deed, and in case we should demand an extension of the Fifteen Hundred ($1500) Dollars, which is payable November 1, 1919, for another year, and make it payable November 1, 1920. You are to arrange the contract in such a manner that said extension will he granted. We want the privilege of paying this indebtedness on or before the three years time. Interest on the mortgages are to he computed on both [654]*654our places, and adjusted when deal is closed.' Taxes to he paid on your place, as well as our when trade is made. We will give you 20 days from this first day of April 1919 to accept this proposition. Dated this 1st day of April 1919. John F. Bach
“Jean C. Bach.”
“Executed in the presence of O. O. Chandler.
“We the undersigned hereby accept your proposition. Dated this 5th of April 1919.
“Felix Le Marinel.
“Margaret Le Marinel.
“This note is part and parcel of original proposition and contract. It being further agreed that LeMarinel and wife, are to deliver possession to Bach and wife, and Bach and wife are to deliver their place to Le'Marinel, subject to lease of grain rent, being two-fifths in warehouse and $100.00 per annum. Marketable titles are to be given by both parties, and ninety days time to be given to perfect same in case of any flaw appearing. J. F. Bach
“Felix LeMarinel.”
“In force when date of acceptance is herein filled by LeMarinel and wife. ’ ’

On the 19th day of April, the appellant John F. Bach and the respondent Felix LeMarinel visited the Spokane county farm, and possession was thereupon delivered to Bach. Following this, they visited the Whitman county farm, and possession was delivered by Bach to LeMarinel. Each of the farms at the time was occupied by a tenant. LeMarinel arranged with his tenant to leave the place or be subject in his future relations thereto to Bach. Bach directed the tenants on his land to pay the rent which would accrue under the unexpired lease to LeMarinel. On the third day of May, 1919, a supplemental contract was entered into which was signed only by Bach and LeMarinel, but was not signed by the respective wives. This contract recites the payment of one thousand dollars by LeMarinel to Bach, and contains other provisions which have a tendency [655]*655to modify the original contract in some particulars in the interest of the appellants. On May 8, 1919, Bach wrote LeMarinel a letter in which he stated that the agreement relative to the exchange of the farms was terminated;

“for the reason and upon the grounds that your land is not as you represented it to me. Hence enclosed please find my check for $5 for money paid by you to me and also your check for $1000 which you delivered to me on the 3rd inst.”

The respondents declined to recognize the termination of the contract, tendered the performance of the terms which had been imposed upon them, and brought this action for the purpose of enforcing specific performance.

Without discussion, it will be assumed that the contract is one which is covered by the statute of frauds and .that all the essential terms thereof must be in the writing and that, the property being community property, the signature of the wives to the contract was a necessary requirement. The first point made by the appellant is that the note on the contract below the signature of LeMarinel and wife was not there at the time it was signed by Mrs. Bach. Upon this question, the evidence is conflicting, but seems to us to establish the fact that the note was upon the contract at the time in question. In any event, it does not impose any burdens upon the appellants in addition to those specified in the contract proper other than the law would require when the deal was closed. It provides for the delivery of possession and for marketable titles. The provision with reference to LeMarinel taking the Whitman county land subject to the lease, grain rent, etc., was for the benefit of the appellants, and if it modified the contract would not furnish a reason for them to refuse performance.

[656]*656The second point is that the contract was defective because it is said that it does not name the respondents as parties thereto. The contract is somewhat informally drawn and purports to be a proposition coming from the appellants. After reciting the consideration, it says “we will give ‘you’ our farm,” and so forth. The argument is that oral testimony is necessary to show who is meant by “you,” and therefore resort must be had to that kind of evidence to sustain an essential term of the contract.

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Cite This Page — Counsel Stack

Bluebook (online)
196 P. 22, 114 Wash. 651, 1921 Wash. LEXIS 675, Counsel Stack Legal Research, https://law.counselstack.com/opinion/le-marinel-v-bach-wash-1921.