Broadway Hospital & Sanitarium v. Decker , 47 Wash. 586 ( 1907 )

Hadley, C. J.

In this cause.the trial court sustained a general demurrer to the complaint. The plaintiff having elected to stand upon its complaint, and having refused to amend, the court entered judgment dismissing the action. The plaintiff has appealed from the judgment. The sole question to he determined is whether the trial court erred in holding that the complaint does not state a cause of action. The purpose of the action is to enforce specific performance of a contract, and it will be necessary to set forth at length the substance of the extensive allegations of the complaint.

The complaint shows that, at all times subsequent to March 29, 1906, the plaintiff was a corporation, and that the defendant was and is the owner of the real property over which the controversy arises; that on the 22d day of March, 1906, and at all times subsequent thereto until the organization of the plaintiff corporation, one McClure and certain other persons were engaged as promoters in the organization of the plaintiff and in the promotion of business for its use and benefit; that on said last-named date said McClure, for the use and benefit of the plaintiff, entered into an agreement with the defendant for the renting from defendant of all of lot 6, block 29, in A. Pontius’ addition to the city of Seattle, with the exception of a small portion thereof in the rear on which was then and now is situated a small cottage; that the agreement provided, among other .things, that said McClure, for the use and benefit of the plaintiff, would then and there pay to the defendant $10 as a first and partial payment upon the first three months’ rent of the premises so to be leased, and that the plaintiff when organized should enter into an indenture of lease for the premises so to. be let for the period of one year at the rental of $70 per month; that it was also further a part of said agreement, in consideration of the $10 paid, that the plaintiff when organized should, at all times during the year called for in said lease, have the right to purchase the whole of said lot upon the payment of the sum of $12,000; that part of the terms of said contract for lease and the said option were reduced to writing and. signed by the defendant, which said writing inclusive of the signature is as follows:

“Seattle, Wash., 3-22—1906.

“Received of Dr. R. A. McClure ($10.00) Ten Dollars as part payment on rent for House No. 322 Broadway, Bal. $200.00 to be paid April 15, 1906, for 3 mos. rent. Rent to be $70. The lease to be one year from May 1st—1906. I also agree to paint outside of house and also give parties occupying house option on buying for $12,000.

“Mrs. J. Decker.”

It is averred that the defendant knew that McClure was engaged as promoter of the plaintiff, and that the contract was made for the use and benefit of plaintiff; that in furtherance of said agreement made by McClure in anticipation of its organization, the plaintiff, after its organization was effected,'entered into a written lease with defendant for the property which is mentioned above, and that the same is described in the lease. It is alleged that, immediately after the agreement was made between McClure and the defendant, McClure, in behalf of and for the use and benefit of the plaintiff, entered into the possession of said premises and continued in such possession until the organization of the plaintiff, since which time the plaintiff has been and still is in possession; that McClure and the plaintiff have kept and performed every condition upon their or either of their parts to be kept and performed as in any manner growing out of said contract or of said lease; that the defendant has never at any time demanded of the plaintiff or of said McClure that they, or either of them, exercise the option given in said contract and pay said sum of $12,000, but that on the contrary the defendant has from time to time represented to the plaintiff that there was no necessity for haste in the matter of exercising the option; that the plaintiff has from time to time assured the defendant that it would avail itself of its option to purchase, and that it would pay said sum of money before the expiration of the right to purchase as given in the contract; that the plaintiff has from time to time assured the defendant that, if she was desirous of having the option exercised at an earlier time than the final expiration of the time therefor, plaintiff would do so upon her request, but that she responded that it was immaterial to her and that she recognized plaintiff’s right to exercise the option at any time within one year from the date of said contract; that the plaintiff has relied upon its said right to exercise its option at any time within said year, and has also relied upon the representations of the defendant that she recognized such right; for which reasons it has not, except as hereinafter stated, made a tender of performance upon its part; that on October 22, 1906, plaintiff tendered to the defendant $12,000, legal tender of the United States, and demanded a deed to the said lot.

It is alleged that the defendant made no objection to the form or sufficiency of the tender, but that, in total disregard of plaintiff’s rights under the contract and in breach thereof, the defendant has refused to make any conveyance whatever to the plaintiff; that at all times since its organization the plaintiff has been engaged in conducting a hospital and sanitarium in the building described in said lease situated upon said lot, and that relying upon said option contract, the plaintiff has made many valuable improvements to said building with the knowledge and consent of defendant. The plaintiff offers to bring the $12,000 into court, or any such other or different sum as shall be by the court adjudged to be proper and just.

In order that appellant’s full theory of the case may be understood, we have stated extensively the substance of the complaint. It will be seen that the initiation of the appellant’s claim for specific performance is founded upon the written receipt of March 22, 1906, between McClure and the respondent. The subject-matter of the controversy is within the statute of frauds, and the appellant manifestly proceeded upon the theory that the writing itself, and upon its face alone, is not sufficient to satisfy the statute. Evidently many of the allegations of the complaint were made with a view to the introduction of oral testimony. The substance of the complaint shows that the contract relied upon must have been partly in writing and partly in parol. For example, it cannot be discovered from the writing that the appellant had any connection with the contract either as a then existing or as a prospective corporation. The writing does not describe the property about which plaintiffs were contracting so that it can be identified and located. It simply refers to “House No. 322, Broadway.” To say nothing of the ordinary, more minute description for identifying real estate, this writing does not even show the state, county, or city within which the property may be found. The writing does not disclose for how long a time the option was to continue, and it does not show what consideration, if any, thex-e was for the option.

It cannot be said from the writing, except by mere inference, that the option period was coextensive with the lease period. The two subjects ax’e in no manner so related that such an inference must necessax-ily be drawn. It cannot be said from the wx-iting that the $10 paid was a consideration for the option, since it expressly stated that it was a payment upon rent. Appellant therefore found it necessax-y to allege a number of things as being part of the contract which the writing does not disclose, and such facts can be established by parol testimony only. It is the general x’ule that when an agreement has been reduced to writing the contexxts thereof cannot be contradicted, altered, added to, or varied by parol or extrinsic evidence. This is not a mex’e rule of evidence where the statute of frauds is concerned, but it is of substantive law. 17 Cyc. 667-70.

Again, at page 7$8e of the above-cited volume, the following statement pertinent to this subject appears:

“The rule that where a contract upon its face is incomplete resort may be had to parol evidence to supply the omitted stipulation applies only in cases unaffected by the statute of frauds. If the subject-matter of the contract is within the statute of frauds and the contract or memorandum is deficient in some one or more of those essentials required by the statute, parol evidence cannot be received to supply the defects, for this w'ould be to do the very thing prohibited by the statute.”

Appellant says it does not contend that parol evidence may be admitted in contradiction of any of the terms of the writing, but that it does contend that extrinsic evidence is admissible to show the actual land subject to the option. Upon this point appellant cites the following: Easton v. Thatcher, 7 Utah 99, 25 Pac. 728; Bacon v. Leslie, 50 Kan. 494, 31 Pac. 1066, 34 Am. St. 134; Ross v. Purse, 17 Colo. 24, 28 Pac. 473. The Utah case cited seems to be broad enough to warrant the contention that a mere attempt at a description may be made certain by extrinsic evidence. The other two cases dealt with descriptions which the courts held contained indicia by reference to which, coupled with the defective description otherwise, the identity of the premises could reasonably be determined. We find no such indicia in the writing before us. We think a description which may be referred to any city in the world where a street of the name may exist is too indefinite to satisfy even the most liberal view of the statute of frauds. The description is too vague and uncertain within the following authorities: Ross v. Allen, 45 Kan. 231, 25 Pac. 570, 10 L. R. A. 835; Nippolt v. Kammon, 39 Minn. 372, 40 N. W. 266; Omaha Loan & Trust Co. v. Goodman, 62 Neb. 197, 86 N. W. 1082; Preston v. Preston, 95 U. S. 200, 24 L. Ed. 494; Wilstach v. Heyd, 122 Ind. 574, 23 N. E. 963.

The complaint alleges that the written lease was executed in furtherance of the original contract. The written lease gives a definite description of certain property, but it was executed by respondent with appellant, a person entirely different from the one who was a party to the receipt, and it makes no mention whatever of any option in favor of appellant or anyone else. It is a mere lease to appellant of a lot with the exception of a small cottage in the rear, while the receipt is for the rent of a house to another person. The two writings upon their face bear no relation to each other, and the description in the first is therefore not aided by reference to the second. If, however, it could be said that the two may be taken together and that so considered they show an option to purchase property sufficiently described, still appellant’s connection with the option can be shown only by parol testimony since it is in no way mentioned in the writing which speaks of an option. Moreover, both together fail to show any time within which the option shall be exercised, and they also fail to show any consideration for the option. Viewed from any standpoint the essential features with reference to the alleged option must be established, if at all, by parol, because of the indefiniteness and uncertainty of the writing upon which appellant relies. Under such circumstances specific performance concerning subj ect-matter within- the statute of frauds cannot be enforced.

Appellant relies further upon the allegation in the complaint that it went into possession of the property. By this it seeks to have the alleged contract specifically enforced as in case of an oral agreement partly performed. We think this contention cannot be sustained. The complaint shows that appellant was in possession as a lessee under its lease, and that it took no steps to put itself within the binding force of the alleged contract for an option until October 22, 1906, when it alleges that by its tender and demand in writing it exercised its alleged option. It was then, and for months prior thereto had been, in possession. The complaint in this suit was filed two days later. It is therefore manifest that possession was not taken under the option contract, and with respondent’s consent, but that it was taken and was continued with her consent under the lease contract; that the part performance must have reference to the one agreement relied upon for specific performance is not only sustained by the authorities, but is founded in fundamental and ordinary reasoning. For-an exhaustive and interesting case upon this subject we cite Maddison v. Alderson, 8 App. Cas. L. R. 467. On page 485 Lord O’Hagan, in concurring in the opinion of the Lord Chancellor, pertinently observed as follows:

“But there is no conflict of judicial opinion, and in my mind no ground for reasonable controversy as to the essential character of the act which shall amount to a part performance, in one particular. It must be unequivocal. It must have relation to .the one agreement relied upon, and to no other. It must be such, in Lord Hardwicke’s words, ‘as could be done with no other view or design than to perform that agreement! It must be sufficient of itself, and without any other information or evidence, to satisfy a court, from the circumstances it. has created and the relations it has formed, that they are only consistent with the assumption of the existence of a contract the terms of which equity requires, if possible, to be ascertained and enforced.”

See, also, Williams v. Morris, 95 U. S. 444, 24 L. Ed. 360; Purcell v. Miner, 4 Wall. 513, 18 L. Ed. 435.

For the foregoing reasons we think the complaint does not state facts sufficient to support a decree of specific performance, and the trial court did not err in sustaining the demurrer.

The judgment is affirmed.

Dunbar, Mount, and Crow, JJ., concur.