Page images
PDF
EPUB

BRIDGES, J. In his complaint the plaintiff alleges that in June, 1923, he was the owner of an old Stevens automobile, and that he delivered it to the defendant to be sold by the latter for not less than $700, and when sold the plaintiff was to receive that sum from the defendant; that thereafter the defendant made the sale for the sum mentioned and refused to pay the proceeds or any portion thereof to the plaintiff. The demand was for the full sale price of $700. The answer admitted that the defendant sold the car for the plaintiff, but alleged that the agreement with reference thereto was that when the car was sold the sale price should be kept by it as a part of the purchase price on a new Stevens car agreed to be purchased by the plaintiff, and that although defendant has at all times been ready and willing to sell such new car and abide by the contract, the plaintiff had renounced the agreement and had refused to purchase. During the trial the defendant's answer was amended to allege in substance that, if the money for which the car was sold belonged to the plaintiff, then it was entitled to deduct therefrom as damages the profit it would have made had the contract been carried out and the plaintiff purchased a new car.

The only finding made by the trial court was that the plaintiff delivered his old car to the defendant to be sold by the latter, and that it was sold for $700 and the expense of such sale was $95.50, and that that amount should be deducted from the sale price, and that judgment should run in favor of the plaintiff for the balance of $604.50. Thereafter judgment was entered in accordance with the finding. Defendant has appealed.

tract and in paying the sale commission, leaving $604.50 in its hands. The judgment was for this sum.

The appellant contends that there was a contract by virtue of which the sale price of the old car was to apply on the purchase price of a new one, and that for this reason the respondent was not entitled to any portion of the money and was not entitled to any benefit thereof except by purchasing a new car and being given credit for the sale price of the old car.

[1] We are convinced, however, that there was no binding agreement to the effect that the respondent would purchase a new car in the event the old one was sold. It is true that there was considerable talk about it, and it is also doubtless true that both parties anticipated that the respondents would purchase a new car; but there was no such contract as can be enforced. There had been nothing said whatsoever concerning the terms of the purchase of the new car, other than that credit should be given for the sale price of the old one. For instance, nothing was said as to how and when the balance of the purchase price was to be paid. After the appellant had made the sale of the old car, negotiations were renewed concerning the purchase of a new one; but the parties were unable to agree upon the manner of payment, and for this reason no sale of the new car was made.

For these reasons we are satisfied the appellant was not entitled to hold the money in its hands for the purpose of applying it on the purchase price of a new car.

What we have said disposes of appellants' further contention that, in any event, they are entitled to deduct as damages the sum of $300, which represents the profit which it would have made had the respondent purchased a new car.

[2] The appellants further contended, and particularly in their oral argument in this court, that the judgment is wrong because there should have been an additional deduction in the sum of $105.10, being the repair bill. The respondent denies that he is in any wise liable for this item, because he did not

A careful consideration of the testimony leads us to believe the facts to. be these: There were negotiations between the parties to this action looking toward the purchase by the respondent of a new Stevens car, the old one to be taken in by the appellant in part payment. These negotiations failed because the respondent demanded that his car should be taken in at a value of $600; whereas, the appellant refused to pay more than $450 or $475 therefor. At that time there was some conversation of a rather indefinite | authorize it. We think the trial court was in nature to the effect that appellant might be able to sell the car for $600 or more. At any rate, the respondent delivered the car into the possession of the appellant with the view that it would be sold and probably the respondent would purchase a new car, paying the full purchase price less the sale price of the old car. To assist in making the sale, the appellant made repairs on the old car, the reasonable value of which was $105.10. The respondent did not authorize these repairs and did not know of them until after they were made. The car was ultimately sold on conditional sale terms for $700. In making the sale the appellant was at an ex

error in not making this deduction. It is true respondent did not authorize any of these repairs to be made, but the testimony shows that they were essential to making the sale and that the car sold for a larger sum because of the repairs. Respondent might have sued for the value of his car when it was turned over to appellants, but this he did not do. He sued for the sum for which the car was sold. In so doing, he not only ratified the action of the appellant in making the sale, but by claiming the whole sale price he claimed the benefit of the repairs and therby ratified the appellant's action in making them. Having so elected, he

(230 P.)

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

MAIN, C. J., and FULLERTON, MITCHELL, and PEMBERTON, JJ., concur.

GARRETSON et ux. v. PARKER et ux. (No. 18530.)

(Supreme Court of Washington. Nov. 20, 1924.)

hereinafter expressed." The lease contained the following stipulations (the lessors being meant by the term "parties of the first part," 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 1st day of March, 1918. They shall at their own costs and expense in a husbandlike manner and proper manner prune, spray, irrigate, and care for all fruit trees now growing upon said premises, and furnishing all teams, tools, ma

1. Landlord and tenant 44(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.

Lease of orchard land which required lessee to keep account of all expenditures, and entitled him to retain possession until he had made a certain profit over and above expenses, held not to create two classes of expenditures, one only of which could be charged against his profits.

2. Landlord and tenant 49(2)-Evidence of improper management by lessee of orchard under lease which guaranteed a stated profit held entitled to greater weight than allowed by the trial court.

In action to state an account under lease of orchard land, which required lessee to manage it in husbandlike manner, and entitled him to retain possession until he had made a stated profit, evidence of loss occasioned by improper management held entitled to greater weight than allowed by trial court, and lessor entitled to greater credits therefor.

3. Evidence 8 It is common knowledge that stacked hay exposed to weather deteriorates.

It is common knowledge that stacks of hay exposed to weather deteriorate.

Department 2.

Appeal from Superior Court, Yakima County; Nichoson, Judge.

Action by Lloyd Garretson and wife against Edward Parker and wife. Judgment for plaintiffs, and defendants appeal. Cause remanded, with instructions to modify de

cree.

John C. Eversole and Parker, La Berge & Parker, all of Yakima, for appellants. Richards, Gilbert & Fontaine, of Yakima, and S. F. McAnally, of Tacoma, for respond

ents.

FULLERTON, J. On February 18, 1918, the appellants, Edward Parker and Julia A. Parker, being then the owners of a tract of land situated in Yakima county, containing approximately 70 acres, leased the same to the Pacific Fruit & Produce Company, a corporation doing business in the county named, "for a term of three years from the 1st day of May, 1918, provided that said period may

hereafter enacted.

all work that is necessary to be done to care "The party of the second part shall also do for and keep all lateral ditches leading water to and distributing water over said premises for irrigation, in repair. They shall cultivate that portion of said land which is not in fruit trees to such crops as they may desire to cultivate thereon, and shall have the privilege of plowing up not to exceed four acres of the said land which is now planted to alfalfa, and to cultivate the same in such crops as they may desire to cultivate on the said land not now in fruit trees, including the 4 acres of alfalfa to be plowed up as herein provided.

"The said land shall be cultivated under the direction of John C. Koreski, or some other practical farmer, and the parties of the first part, and the party of the second part, shall, from time to time, confer as to the manner and method of cultivating said land and handling said fruit trees, and in case of any disagreement between the parties hereto as to the proper method of handling, spraying, and caring for such fruit trees the said matter upon which a disagreement arises shall be submitted by the parties hereto to the horticultural inspector of Yakima county then in office, and the decision of such horticultural inspector upon any question, upon which there is a dispute, shall be final and binding on all parties hereto.

"The party of the second part shall pay as rental for said premises, for the year 1918, the sum of $2,000, said sum to be paid on the 1st day of March, 1918. For the year 1919 rental for said premises the sum of $2,500, said the party of the second part shall pay as sum of $2,500 to be paid on or before the 1st day of March, 1919. For the year 1920 the party of the second part shall pay as rental for said premises the sum of $3,000, said sum to be paid on or before the 1st day of March, 1920. The party of the second part shall cause said land to be cultivated, the crops harvested, and the produce thereof handled and marketed in an economical and husbandlike manner, and shall keep an accurate account of all costs and amounts expended by them in and about the cultivating and handling of said land, and the crops therefrom, and the prices received for the crops therefrom, which account shall, during all business hours, be accessible to the parties of the first part, their agent, or attorney, for the purpose of examination.

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

[ocr errors]

"It is agreed that this contract and as a part, of the consideration is based upon a net income from said premises for the year 1918 of not less than $1,200.00 and upon the basis of net income. from said premises for the year 1919, and the year 1920, of at least $5,000.00 each of said two years, and, if the party of the second part does not receive a net income from said premises for said three years of at least $11,200, they will have the use of said premises for such an additional period after the expiration of said three years as will enable them to receive from said premises a net income of $11,200.00, and, if the party of the second part becomes entitled to the use and possession of said premises for any additional period over said three years, to make up the income of $11,200.00 after the income from said premises has exceeded $11,200, then any excess of net income above $11,200 received by the party of the second part, shall be divided equally between the parties hereto, each receiving one-half thereof. And it is further understood that, if the party of the second part is required to advance, or upon the request of the parties of the first part does advance, any sum or sums for the protection of said leased premises, against any lien or liens, against or upon said premises, such sum or sums which may be so advanced shall be considered a part of the operating expenses for the year or years in which such advance is made.

"The parties of the first part shall furnish with said premises the water rights to which said land is entitled in the Tieton reclamation

project, and shall pay the amount charged by said reclamation project for the irrigation of said land, up to but not exceeding 2.17 acre feet per acre of irrigable land. The party of the second part shall pay any amount charged by the said reclamation project for water used in excess of the said quantity which excess amount so paid shall be considered as a part of the costs of producing the crops for the year in which such excess water shall be used, but such amount paid for excess water shall not be charged against the parties of the first part in any other way or manner.

"It is agreed and understood that the time of making said payments, and the faithful performance of all the acts and things to be done and performed as herein provided, are of the essence of this contract, and a material part thereof, and that, should the party of the second part fail to make said payments or either of them, when the same become due, or should fail to do and perform any act or thing by it to be done and performed, as herein provided, or if it should permit waste upon said premises, or unnecessarily injure the same, the parties of the first part may, upon such failure or commission of waste or injury re-enter said premises, remove the party of the second part therefrom, and all obligations of every kind and character under the terms of this contract shall, upon such failure, cease and be terminated, and the parties of the first part may retain any amount theretofore paid on account of said rental, and it is agreed that, if any dispute arises between the parties hereto as to whether there has been a performance of said contract in accordance herewith, each party hereto shall select one disinterested, competent

unable to agree, shall select a third, and the decision of the three men thus selected, or a majority of them, shall be final and binding upon all parties hereto, and each party hereto shall pay one-half the costs of such arbitration.

"The land above described contains a valuable young orchard, and this contract is based upon the personal trust and confidence which the parties of the first part have in the party of the second part and its ability, knowledge, and good faith in handling said orchard to the best advantage, and this contract therefor shall not be assigned or transferred or said premises or any part thereof sublet without the consent of the parties of the first part in writing being first had and obtained to such assignment and transfer or subletting, and any attempt to sublet said premises or assign or transfer this contract shall be sufficient cause, at the option of the parties of the first part, to cancel and terminate this contract.

"It is agreed and understood by the parties hereto that the second party may, at its option, terminate this contract after the end of any crop season by giving the parties of the first part notice in writing prior to February 1st of the succeeding year of their intention to so terminate same."

On February 18, 1919, the lease, with the consent of the lessors, was transferred by the original lessee to Lloyd Garretson, the respondent in the present action.

The principal orchard mentioned in the lease was an apple orchard, some 36 acres in extent, located on the east half of the tract. On October 1, 1920, the lessors, with the consent of Garretson, sold 18.67 acres of the land to one Roberts. Within the description of the tract sold were some 17 acres of the orchard mentioned. A part of the agreed purchase price, $17,000, was not paid at the time of the sale. For this part, the grantors took the promissory notes of the purchaser secured by a mortgage on the tract conveyed. These notes were six in number, five for $3,000 each and one for $2,000, and were payable one in each year for six successive years from the date of the sale. At the time of the transaction the purchaser and the grantors entered into an agreement, which, after reciting the sale and the fact that a part of the purchase price had been secured by mortgage, contained the following stipulations:

"And, whereas, said mortgagees consider it advisable to retain some control over said mortgaged premises until the first two notes have been paid as additional security:

"Now, therefore, it is hereby agreed by and between the parties hereto as follows:

"Said Edward Parker does hereby agree to negotiate for a lease of said premises to some horticulturist, either upon a cash or crop basis, and upon such terms and conditions as he may deem advisable, said lease to be for the term of one year only, provided that, if said lease is for cash, the amount of rental reserved shall be subject to the approval of said John E. Roberts, and that, if said rental is for shares, the share of said crop reserved to the

(230 P.)

less than one-half thereof, and that all pick-
ing, packing, crating, sorting, and boxing shall
be paid for by the tenant, and that said John
E. Roberts and wife agree to pay for all ma-
terials, including boxes, nails, and paper used
in the care of their share of the crop, and said
John E. Roberts and wife do hereby agree to
execute a lease with such person upon the
above terms or such better terms as may be
secured by the said Edward Parker.
"It is further understood and agreed that
similar arrangements shall be effected for each
year until the first two promissory notes due to
said mortgagee have been paid, provided, how-
ever, that no lease shall be entered into for
more than one year at a time.

* *

*

"It is further agreed and understood that all net proceeds to be received by said first parties under said lease shall be paid to said Julia A. Parker, to be applied upon said mortgage indebtedness in addition to the payments to be paid for that year in accordance with the notes which said mortgage secures, it being the intention that said three thousand dollar ($3,000.00) note which becomes due in 1921 shall be paid in addition to such crop payment, and it is further agreed that when said first two notes for three thousand dollars ($3,000.00) are paid, together with all interest on said mortgage indebtedness, that this agreement shall cease and no longer be in force and effect."

for the faithful performance on the part of the first parties of said guarantee."

In their consideration of the questions at issue both parties have treated Garretson as the original lessee. Looking at the record from the same point of view, it appears that Garretson entered into possession of the premises shortly after the execution of the lease; that he continued in such possession until the time of the trial of the present action which was had in March, 1923; and that during this period he bore the expense of farming the premises and received and disposed of the crops grown thereon. He paid the rentals called for by the terms of the lease, that is to say, the rentals for the years 1918, 1919, and 1920, but paid nothing by way of rentai for the years 1921 and 1922. His account shows that during this period he has had a net return from the produce of the premises over and above the expenses, including the rental, according to the findings of the trial court, of $670.35.

The present action was instituted in August, 1922. At that time a dispute had arisen between the lessors and the lessee as to the then state of the account between the parties. Garretson claimed that he had suffered

At the time of the sale of the tract to a loss in his farming operations of $1,629.69, Roberts the lessors entered into a further and that there was then owing him this sum 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:

"And, whereas, said release was made for the purpose of permitting said lessors to dispose of all said property to one John E. Roberts, and said lessors have disposed of said property to said John E. Roberts, taking a first mortgage upon said premises together with an agreement that the net proceeds of the crops to be grown during the years 1921 and 1922 shall be applied by said John E. Roberts towards the payment of said mortgage indebtedness due first parties;

"And, whereas, it is at the present time doubtful whether the guarantee of said first parties in connection with the said lease will have been lived up to when a settlement shall have been made by the parties hereto after the disposal by said second parties of the crops grown upon said leased premises during the year of 1920:

notes given for the purchase price of the land sold to him. His claims were disputed by the lessors, and the purpose of the action was to establish the account and to secure the payment thereon of the amount paid by Roberts on the notes. To the complaint the plaintiff attached a statement of the receipts and expenditures from the premises showing a loss in the sum before stated. Before the trial of the action he supplemented the complaint by a statement of the expenditures and receipts for the year 1922, which changed the deficit into the profit. The lessors answered, denying that the account submitted was a correct account, and averring affirmatively that the expenses charged were grossly excessive; that the premises had not been properly cared for or tilled; that a large part of the products of the premises had not been accounted for; and that such as had been taken from the premises and disposed of had been so disposed of at less than its market value, averring further that on a proper accounting it would be found that the lessee had been fully paid all that was due him under the lease. They prayed an accounting, and further prayed that they have judgment for such sum as should be found due them, and that the court adjudicate the lease to be at an end.

"Now, therefore, in consideration of the premises said first parties do hereby agree that, in the event that said guarantee shall not have been performed by them at the end of the term of said lease, they will assign or set over to said second party all interest or right which they may become entitled to in and to the proceeds of the crops for the years 1921 and 1922 upon said John E. Roberts premises, as security for the performance by said first parties of said guarantee. First parties further agree in such event to execute whatever papers or agreements second party may deem necessary to properly transfer said interest in 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

between costs and expenses which the lessee is entitled to charge back to the lessors and those which he is not; that a distinction is made in this respect between the costs and

court as of a cause of equitable cognizance. The trial judge made no formal findings of fact, but filed a written opinion in the cause in which he stated in a general way his findings and conclusions. The findings in sub-expenses of caring for the fruit trees and the stance sustained the lessee's contention that he had farmed the premises in the manner required by the lease, and that he had faithfully accounted for all of the produce raised upon the place. Because, however, of the lessee's admission that he had failed to irrigate certain hay land in one season, he was chargeable with a loss of $216 on account thereof. The evidence disclosed that the part of the orchard sold to Roberts produced during the years 1921 and 1922 marketable apples grossly in excess of the practically equal quantity retained and care for by the lessee, and based on this fact the judge allowed a credit to the lessors over and above the amount credited by the lessee in the sum of $2,500. He found that the sum remaining due to the lessee under the terms of the lease as shown by his account was $10,529.65; from this he deducted the items above mentioned, leaving a balance of $7,813.65. Nothing is said in the opinion with reference to the amount claimed to be due on account of payments made by Roberts on the mortgage note.

cost and expenses incurred and expended in the performance of the other work required by the terms of the lease. But we agree with the trial court that the terms of the lease as a whole negative such a construction. Elsewhere in the lease, particularly in those parts of it wherein the lessor is required to keep accurate accounts of his expenditure and receipts, no distinction is made between the expenses of caring for the fruit trees and the expenses of performing other parts of the work. In those parts of the contract the expenses as well as the proceeds from the crops are spoken of as a whole. In the fifth paragraph of the lease, also the paragraph that contains the provisions relating to the guarantee, the references are to the "net income." These provisions, manifestly, are contrary to the thought that only a part of the expenses were to be deducted in ascertaining the income. The lessors furthermore had access to the accounts. They knew the manner in which they were kept, and knew that from the beginning the lessee was charging to them all of the expenses of caring for the land, yet they made no objection thereto until about the time of the commencement of the present action. This is a contemporaneous construction of the contract, furnishing persuasive evidence that the construction put upon the contract by the court is in accordance with the understanding of the parties. We think we need not review the many cases cited by counsel as bearing on the question. In so far as they are applicable to the situation, they state general principles only, with none of which we are in dispute. A review of them, therefore, would be only an attempt to show their inapplicability, in no way enlightening.

The decree adjudicated in substance that there had been no forfeiture of the lease; that there remained due the lessee the sum of $7,813.65, and that the lessee was entitled to retain possession of the premises and till and farm the same until the sum had been either paid to him or derived from the products of the leased land; that he was entitled to a personal judgment against the lessors on account of the payments received from Roberts during the years 1921 and 1922 in the sum of $1,856.78, providing, however, that this sum should be credited on the amount remaining due under the terms of the lease on its payment, decreeing further that the lessee was entitled to recover his [2, 3] As to the other branch of the case, 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. 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

It

« PreviousContinue »