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BRIDGES, J. In his complaint the plain-, tract and in paying the sale commission, tiff alleges that in June, 1923, he was the leaving $604.50 in its hands. The judgment owner of an old Stevens automobile, and that was for this sum. he delivered it to the defendant to be sold The appellant contends that there was a by the latter for not less than $700, and when contract by virtue of which the sale price of sold the plaintiff was to receive that sum the old car was to apply on the purchase from the defendant; that thereafter the de- price of a new one, and that for this reason fendant made the sale for the sum mentioned the respondent was not entitled to any porand refused to pay the proceeds or any por- tion of the money and was not entitled to any tion thereof to the plaintiff. The demand benefit thereof except by purchasing a new was for the full sale price of $700. The an- car and being given credit for the sale price swer admitted that the defendant sold the of the old car. car for the plaintiff, but alleged that the [1] We are convinced, however, that there agreement with reference thereto was that was no binding agreement to the effect that when the car was sold the sale price should the respondent would purchase a new car in be kept by it as a part of the purchase price the event the old one was sold. It is true on a new Stevens car agreed to be purchased that there was considerable talk about it, by the plaintiff, and that although defendant and it is also doubtless true that both parties has at all times been ready and willing to anticipated that the respondents would pursell such new car and abide by the contract, chase a new car; but there was no such conthe plaintiff had renounced the agreement tract as can be enforced. There had been and had refused to purchase. During the nothing said whatsoever concerning the trial the defendant's answer was amended to terms of the purchase of the new car, other allege in substance that, if the money for than that credit should be given for the sale which the car was sold belonged to the plain- price of the old one. For instance, nothing tiff, then it was entitled to deduct therefrom was said as to how and when the balance of as damages the profit it would have made the purchase price was to be paid. After had the contract been carried out and the the appellant had made the sale of the old plaintiff purchased a new car.

car, negotiations were renewed concerning The only finding made by the trial court the purchase of a new one; but the parties was that the plaintiff delivered his old car were unable to agree upon the manner of to the defendant to be sold by the latter, payment, and for this reason no sale of the and that it was sold for $700 and the expense new car was made. of such sale was $95.50, and that that amount For these reasons we are satisfied the apshould be deducted from the sale price, and pellant was not entitled to hold the money that judgment should run in favor of the in its hands for the purpose of applying it plaintiff for the balance of $604.50. There on the purchase price of a new car. after judgment was entered in accordance What we have said disposes of appellants' with the finding. Defendant has appealed. further contention that, in any event, they

A careful consideration of the testimony are entitled to deduct as damages the sum of leads us to believe the facts to be these: $300, which represents the profit which it There were negotiations between the parties would have made had the respondent purto this action looking toward the purchase chased a new car. by the respondent of a new Stevens car, the [2] The appellants further contended, and old one to be taken in by the appellant in particularly in their oral argument in this part payment. These negotiations failed be- court, that the judgment is wrong because cause the respondent demanded that his car there should have been an additional deducshould be taken in at a value of $600 ; where- tion in the sum of $105.10, being the repair as, the appellant refused to pay more than bill. The respondent denies that he is in any $150 or $475 therefor. At that time there wise liable for this item, because he did not was some conversation of a rather indefinite authorize it. We think the trial court was in nature to the effect that appellant might be error in not making this deduction. It is able to sell the car for $600 or more. At any true respondent did not authorize any of rate, the respondent delivered the car into these repairs to be made, but the testimony the possession of the appellant with the view shows that they were essential to making that it would be sold and probably the re- the sale and that the car sold for a larger spondent would purchase a new car, paying sum because of the repairs. Respondent the full purchase price less the sale price of might have sued for the value of his car the old car. To assist in making the sale, when it was turned over to appellants, but the appellant made repairs on the old car, this he did not do. He sued for the sum for the reasonable value of which was $105.10. which the car was sold. In so doing, he not The respondent did not authorize these re-only ratified the action of the appellant in pairs and did not know of them until after making the sale, but by claiming the whole they were made. The car was ultimately sale price he claimed the benefit of the resold on conditional sale terms for $700. In pairs and therby ratified the appellant's acmaking the sale the appellant was at an ex- tion in making them. Having so elected, he pense of $95.50, in discounting the sale con cannot now refuse to pay the repair bill.

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(230 P.) The judgment, which was for $604.50, will be extended upon the conditions and terms be reduced to $499.40.

hereinafter expressed." The lease contained

the following stipulations (the lessors being MAIN, C. J., and FULLERTON, MITCH- meant by the term “parties of the first part," ELL, and PEMBERTON, JJ., concur. and the lessee by the term “party of the

second part”):

"The party of the second part shall have

possession of said land from and after the said GARRETSON et ux. V. PARKER et ux. 1st day of March, 1918. They shall at their (No. 18530.)

own costs and expense in a husbandlike manner

and proper manner prune, spray, irrigate, and (Supreme Court of Washington. Nov. 20,

care for all fruit trees now growing upon said 1924.)

premises, and furnishing all teams, tools, ma1. Landlord and tenant @ww44(1)-Lease guar- terial, and labor necessary for that purpose, antying lessee certain profits held not to and the spraying of said fruit trees shall be create two classes of expenditures, one of done in accordance with the horticultural laws which only was chargeable by him in deter of the state of Washington now in force or mining profits,

hereafter enacted. Lease of orchard land which required les. all work that is necessary to be done to care

“The party of the second part shall also do see to keep account of all expenditures, and for and keep all lateral ditches leading water entitled him to retain possession until he had to and distributing water over said premises made a certain profit over and above expenses, for irrigation, in repair. They shall cultivate held not to create two classes of expenditures, that portion of said land which is not in fruit one only of which could be charged against his trees to such crops as they may desire to culprofits.

tivate thereon, and shall have the privilege of 2. Landlord and tenant om 49(2)-Evidence of plowing up not to exceed four acres of the improper management by lessee of orchard said land which is now planted to alfalfa, and under lease which guaranteed a stated profit to cultivate same in such crops as they may held entitled to greater weight than allowed desire to cultivate on the said land not now in by the trial court.

fruit trees, including the 4 acres of alfalfa In action to state an account under lease of to be plowed up as herein provided. orchard land, which required lessee to manage

“The said land shall be cultivated under the it in husbandlike manner, and entitled him to direction of John C. Koreski, or some other retain possession until he had made a stated practical farmer, and the parties of the first profit, evidence of loss occasioned by improper part, and the party of the second part, shall, management held entitled to greater weight from time to time, confer as to the manner than allowed by trial court, and lessor entitled and method of cultivating said land and hanto greater credits therefor.

dling said fruit trees, and in case of any dis

agreement between the parties hereto as 3. Evidence Ow8 It is common knowledge the proper method of handling, spraying, and that stacked hay exposed to weather de. caring for such fruit trees the said matter teriorates.

upon which a disagreement arises shall be subIt is common knowledge that stacks of hay mitted by the parties hereto to the horticulexposed to weather deteriorate.

tural inspector of Yakima county then in of

fice, and the decision of such horticultural inDepartment 2.

spector upon any question, upon which there

is a dispute, shall be final and binding on all Appeal from Superior Court, Yakima Coun

parties hereto. ty; Nichoson, Judge.

"The party of the second part shall pay as Action by Lloyd Garretson and wife rental for said premises, for the year 1918, against Edward Parker and wife. Judgment the sum of $2,000, said sum to be paid on the for plaintiffs, and defendants appeal. Cause 1st day of March, 1918. For the year 1919

the party of the second part shall pay remanded, with instructions to modify de- rental for said premises the sum of $2,500, said

sum of $2,500 to be paid on or before the 1st John C. Eversole and Parker, La Berge & day of March, 1919. For the year 1920 the Parker, all of Yakima, for appellants.

party of the second part shall pay as rental Richards, Gilbert & Fontaine, of Yakima, for said premises the sum of $3,000, said sum

to be paid on or before the 1st day of March, and S. F. McAnally, of Tacoma, for respond- 1920. The party of the second part shall ents.

cause said land to be cultivated, the crops har

vested, and the produce thereof handled and FULLERTON, J. On February 18, 1918, marketed in an economical and husbandlike the appellants, Edward Parker and Julia A. manner, and shall keep an accurate account Parker, being then the owners of a tract of of all costs and amounts expended by them in land situated in Yakima county, containing and about the cultivating and handling of said approximately 70 acres, leased the same to land, and the crops therefrom, and the prices

received for the crops therefrom, which acthe Pacific Fruit & Produce Company, a cor count shall, during all business hours, be accesporation doing business in the county named, sible to the parties of the first part, their "for a term of three years from the 1st day agent, or attorney, for the purpose of examof May, 1918, provided that said period may lination.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

to

as

cree.

"It is agreed that this contract and as a part, unable to agree, shall select a third, and the of the consideration is based upon a net income decision of the three men thus selected, or a from said premises for the year 1918 of not majority of them, shall be final and binding less than $1,200.00 and upon the basis of net upon all parties hereto, and each party hereto income. from said premises for the year 1919, shall pay one-half the costs of such arbitraand the year 1920, of at least $5,000.00 each tion. of said two years, and, if the party of the "The land above described contains a valuasecond part does not receive a net income from ble young orchard, and this contract is based said premises for said three years of at least upon the personal trust and confidence which $11,200, they will have the use of said prem- the parties of the first part have in the party ises for such an additional period after the of the second part and its ability, knowledge, expiration of said three years as will enable and good faith in handling said orchard to them to receive from said premises a net the best advantage, and this contract therefor income of $11,200.00, and, if the party of the shall not be assigned or transferred or said second part becomes entitled to the use and premises or any part thereof sublet without the possession of said premises for any addition consent of the parties of the first part in al period over said three years, to make up the writing being first had and obtained to such income of $11,200.00 after the income from assignment and transfer or subletting, and any said premises has exceeded $11,200, then any attempt to sublet said premises or assign or excess of net income above $11,200 received transfer this contract shall be sufficient cause, by the party of the second part, shall be divid- at the option of the parties of the first part, ed equally between the parties hereto, each to cancel and terminate this contract. receiving one-half thereof. And it is further "It is agreed and understood by the parties understood that, if the party of the second hereto that the second party may, at its oppart is required to advance, or upon the re- tion, terminate this contract after the end of quest of the parties of the first part does ad- any crop season by giving the parties of the vance, any sum or sums for the protection of first part notice in writing prior to February said leased premises, against any lien or liens, 1st of the succeeding year of their intention to against or upon said premises, such sum or so terminate same." sums which may be so advanced shall be considered a part of the operating expenses for On February 18, 1919, the lease, with the the year or years in which such advance is consent of the lessors, was transferred by made.

the original lessee to Lloyd Garretson, the “The parties of the first part shall furnish respondent in the present action. with said premises the water rights to which

The principal orchard mentioned in the said land is entitled in the Tieton reclamation project, and shall pay the amount charged by lease was an apple orchard, some 36 acres in said reclamation project for the irrigation of extent, located on the east half of the tract. said land, up to but not exceeding 2.17 acre On October 1, 1920, the lessors, with the confeet per acre of irrigable land. The party of sent of Garretson, sold 18.67 acres of the land the second part shall pay any amount charged to one Roberts. Within the description of by the said reclamation project for water used the tract sold were some 17 acres of the orin excess of the said quantity which excess chard mentioned. A part of the agreed puramount so paid shall be considered as a part of chase price, $17,000, was not paid at the time the costs of producing the crops for the year in of the sale. For this part, the grantors took which such excess water shall be used, but such amount paid for excess water shall not the promissory notes of the purchaser secured be charged against the parties of the first part by a mortgage on the tract conveyed. These in any other way or manner.

notes were six in number, five for $3,000 each “It is agreed and understood that the time and one for $2,000, and were payable one in of making said payments, and the faithful per- each year for six successive years from the formance of all the acts and things to be done date of the sale. At the time of the transacand performed as herein provided, are of the tion the purchaser and the grantors entered essence of this contract, and a material part into an agreement, which, after reciting the thereof, and that, should the party of the second part fail to make said payments or either sale and the fact that a part of the purchase of them, when the same become due, or should price had been secured by mortgage, confail to do and perform any act or thing by it to tained the following stipulations: be done and performed, as herein provided, or “And, whereas, said mortgagees consider it if it should permit waste upon said premises, advisable to retain some control over said or unnecessarily injure the same, the parties mortgaged premises until the first two notes of the first part may, upon such failure or com- have been paid as additional security: mission of waste or injury re-enter said prem "Now, therefore, it is hereby agreed by and ises, remove the party of the second part there between the parties hereto as follows: from, and all obligations of every kind and "Said Edward Parker does hereby agree to character under the terms of this contract negotiate for a lease of said premises to some shall, upon such failure, cease and be ter- horticulturist, either upon cash or crop minated, and the parties of the first part may basis, and upon such terms and conditions as retain any amount theretofore paid on account he may deem advisable, said lease to be for of said rental, and it is agreed that, if any the term of one year only, provided that, if said dispute arises between the parties hereto as to lease is for cash, the amount of rental reserved whether there has been a performance of said shall be subject to the approval of said John contract in accordance herewith, each party E. Roberts, and that, if said rental is for hereto shall select one disinterested, competent shares, the share of said crop reserved to the man, the two thus selected, in case they are said John E. Roberts and wife shall not be

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(230 P.) less than one-half thereof, and that all pick-, for the faithful performance on the part of the ing, packing, crating, sorting, and boxing shall first parties of said guarantee." be paid for by the tenant, and that said John E. Roberts and wife agree to pay for all ma

In their consideration of the questions at terials, including boxes, nails, and paper used issue both parties have treated Garretson as in the care of their share of the crop, and said the original lessee. Looking at the record John E. Roberts and wife do hereby agree to from the same point of view, it appears execute a lease with such person upon the that Garretson entered into possession of the above terms or such better terms as may be premises shortly after the execution of the secured by the said Edward Parker, "It is further understood and agreed that until the time of the trial of the present ac

lease; that he continued in such possession similar arrangements shall be effected for each year until the first two promissory notes due to tion which was had in March, 1923; and that said mortgagee have been paid, provided, how during this period he bore the expense of ever, that no lease shall be entered into for farming the premises and received and dismore than one year at a time.

posed of the crops grown thereon. He paid "It is further agreed and understood that all the rentals called for by the terms of the net proceeds to be received by said first par lease, that is to say, the rentals for the years ties under said lease shall be paid to said Julia 1918, 1919, and 1920, but paid nothing by way A. Parker, to be applied upon said mortgage in

His debtedness in addition to the payments to be of rentai for the years 1921 and 1922. paid for that year in accordance with the notes account shows that during this period he which said mortgage secures, it being the in- has had a net return from the produce of tention that said three thousand dollar ($3,- the premises over and above the expenses, in000.00) note which becomes due in 1921 shall cluding the rental, according to the findings be paid in addition to such crop payment, and of the trial court, of $670.35. it is further agreed that when said first two

The present action was instituted in Aunotes for three thousand dollars ($3,000.00) are gust, 1922. At that time a dispute had arispaid, together with all interest on said mort. I en between the lessors and the lessee as to gage indebtedness, that this agreement shall

the then state of the account between the parcease and no longer be in force and effect."

ties. Garretson claims that he had suffered At the time of the sale of the tract to and that there was then owing him this sum

a loss in his farming operations of $1,629.69, Roberts the lessors entered into a further agreement with the lessee, Garretson. This together with the sum of $11,200 he was enagreement, after reciting the release of the titled to receive as profits by the terms of the property sold to Roberts, contained further contract. He further contended that he was recitals, together with the terms of the agreements made by Roberts on the mortgage

entitled to have credited thereon the payment, in the following language:

notes given for the purchase price of the "And, whereas, said release was made for land sold to him. His claims were disputed the purpose of permitting said lessors to dispose of all said property to one John E. Rob- | by the lessors, and the purpose of the action erts, and said lessors have disposed of said was to establish the account and to secure property to said John E. Roberts, taking a

the payment thereon of the amount paid by first mortgage upon said premises together Roberts on the notes. To the complaint the with an agreement that the net proceeds of plaintiff attached a statement of the receipts the crops to be grown during the years 1921 and expenditures from the premises showing and 1922 shall be applied by said John E. Rob- a loss in the sum before stated. Before the erts towards the payment of said mortgage in- trial of the action he supplemented the comdebtedness due first parties;

“And, whereas, it is at 'the present time plaint by a statement of the expenditures and doubtful whether the guarantee of said first receipts for the year 1922, which changed the parties in connection with the said lease will deficit into the profit. The lessors answered, have been lived up to when a settlement shall denying that the account ibmitted was a have been made by the parties hereto after correct account, and averring affirmatively the disposal by said second parties of the crops that the expenses charged were grossly exgrown upon said leased premises during the cessive; that the premises had not been propyear of 1920:

erly cared for or tilled; that a large part of "Now, therefore, in consideration of the the products of the premises had not been acpremises said first parties do hereby agree that, in the event that said guarantee shall not have counted for; and that such as had been takbeen performed by them at the end of the en from the premises and disposed of had term of said lease, they will assign or set been so disposed of at less than its market over to said second party all interest or right value, averring further that on a proper acwhich they may become entitled to in and to counting it would be found that the lessee the proceeds of the crops for the years 1921 had been fully paid all that was due him unand 1922 upon said John E. Roberts premises, der the lease. as security for the performance by said first and further prayed that they have judgment

They prayed an accounting, parties of said guarantee. First parties further agree in such event to execute whatever for such sum as should be found due them, papers or agreements second party may deem and that the court adjudicate the lease to necessary to properly transfer said interest in be at an end. said crop returns to him so that the same may

Issue was taken on the affirmative matter be properly held by him as collateral security in the answer, and a trial had before the

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court as of a cause of equitable cognizance. , between costs and expenses which the lessee The trial judge made no formal findings of is entitled to charge back to the lessors and fact, but filed a written opinion in the cause those which he is not; that a distinction is in which he stated in a general way his find- made in this respect between the costs and ings and conclusions. The findings in sub- expenses of caring for the fruit trees and the stance sustained the lessee's contention that cost and expenses incurred and expended in he had farmed premises in the manner the performance of the other work required required by the lease, and that he had faith-by the terms of the lease. But we agree with fully accounted for all of the produce raised the trial court that the terms of the lease upon the place. Because, however, of the as a whole negative such a construction. lessee's admission that he had failed to irri. Elsewhere in the lease, particularly in those gate certain hay land in one season, he was parts of it wherein the lessor is required to chargeable with a loss of $216 on account keep accurate accounts of his expenditure thereof. The evidence disclosed that the part and receipts, no distinction is made between of the orchard sold to Roberts produced dur- the expenses of caring for the fruit trees and ing the years 1921 and 1922 marketable ap- the expenses of performing other parts of ples grossly in excess of the practically equal | the work. In those parts of the contract the quantity retained and care for by the lessee, expenses as well as the proceeds from the and based on this fact the judge allowed a crops are spoken of as a whole. In the fifth credit to the lessors over and above the paragraph of the lease, also the paragraph amount credited by the lessee in the sum of that contains the provisions relating to the $2,500. He found that the sum remaining guarantee, the references are to the “net indue to the lessee under the terms of the lease come.” These provisions, manifestly, are conas shown by his account was $10,529.65; trary to the thought that only a part of the from this he deducted the items above men- expenses were to be deducted in ascertaining tioned, leaving a balance of $7,813.65. Noth- the income. The lessors furthermore had acing is said in the opinion with reference to cess to the accounts. They knew the manthe amount claimed to be due on account of ner in which they were kept, and knew that payments made by Roberts on the mortgage from the beginning the lessee was charging note.

to them all of the expenses of caring for The decree adjudicated in substance that the land, yet they made no objection thereto there had been no forfeiture of the lease; / until about the time of the commencement of that there remained due the lessee the sum the present action. This is a contemporaneof $7,813.65, and that the lessee was entitled ous construction of the contract, furnishing to retain possession of the premises and till persuasive evidence that the construction put and farm the same until the sum had been upon the contract by the court is in accordeither paid to him or derived from the prod-ance with the understanding of the parties. ucts of the leased land; that he was en- We think we need not review the many cases titled to a personal judgment against the cited by counsel as 'bearing on the question. lessors on account of the payments received In so far as they are applicable to the situafrom Roberts during the years 1921 and 1922 tion, they state general principles only, with in the sum of $1,856.78, providing, however, none of which we are in dispute. A review that this sum should be credited on the of them, therefore, would be only an attempt amount remaining due under the terms of to show their inapplicability, in no way enthe lease on its payment, decreeing further | lightening. that the lessee was entitled to recover his costs and disbursements expended in the we are not in so full an accord with the trial prosecution of his suit. The lessors appeal. judge's conclusion. In his memorandum

[1] The first assignment of error to be no- opinion before mentioned the trial judge statticed involves the construction of the con- ed that the books of account kept by the lestract of lease. It will be observed from the see were complete and detailed, and that first paragraph of the lease which we have there was not “a scintilla of evidence to imquoted that the lessee shall have possession peach in any manner a single item on the of the leased premises from and after a time question of the amount produced or the price stated, and shall "at their own cost and ex- received therefor.” In so far as the books pense, in a husbandlike and proper man. themselves are concerned, we find nothing to ner, prune, spray, irrigate, and care for all dispute the fact that they were properly kept fruit trees now growing upon the premises, and correctly show the amount of produce and furnish all teams, tools, material, and reported, the disposition made of it, and the labor for the purpose.

*” It will be prices received therefor. But this does not. observed furthermore that the provision re- meet the point to which the lessors directed lating to the cost and expense is not con- their evidence. Their claim is that the lestained in the other provisions of the contract see's accounts do not show all the products wherein the duties of the lessee as to other actually grown and harvested upon the premparts of the leased premises are defined. It ises, and show nothing of the losses caused is the contention of the lessors that these by the negligent care of the premises. As provisions of the contract mark a distinction an illustration, certain of the hay crops may

is [2, 3] As to the other branch of the case,

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