Cannell v. James

Fullerton, J. — On March 25, 1920, tbe parties to tbis action jointly purchased three several lots situated in tbe city of Spokane, taking a joint deed therefor; tbe lots being known in tbe record as 502, 501 and 506, Maxwell avenue. Tbe purchase price was $1,200, of which sum each of tbe parties paid one-half. On each of tbe lots was a small bouse. Tbe purchasers severally desired one of tbe bouses for residence purposes, and tbe three were purchased because tbe owner would not sell them singly. It was tbe under [600] standing of the parties at the time of the purchase that each would he permitted to select one, and that the other should be sold and the proceeds of the sale divided between them. At the time of the purchase, or very soon thereafter, Mrs. Cannell selected as her property the lot known as 502, in which selection Mrs. James acquiesced. Mrs. James made her selection later, taking 504. The houses were in bad condition at the time of the purchase, and certain repair work was necessary to make them habitable. This work was undertaken, and progressed upon all three of the houses at once, the workmen engaged in the work moving from one to the other as necessity required. After the work had been completed as a joint venture, the purchasers took actual possession, each moving into the house selected by her. After thus taking possession, each of the parties made some additional improvements on the house occupied by her; Mrs. Cannell’s being the more extensive and the more costly. Later on Mrs. James desired to use her property as security for a loan. She approached Mrs. Cannell and suggested that they exchange deeds so as to vest in each the entire title to the lot of which she had possession. Mrs. Cannell consented to this and they went to a notary to have the deeds prepared. Mrs. Cannell was a married woman, and the notary preparing the deeds suggested that her husband join therein to foreclose any question as to his community property rights. Mr. Cannell was in an adjoining state, and the deed was forwarded to him for execution; Mrs. James’ deed Avas left Avith the notary, with the understanding that the deeds would be exchanged on the return of the' deed from Mr. Cannell. Mr. Cannell returned the deed to Mrs. Cannell instead of the notary, and Mrs. Can [601] nell, meeting Mrs. James shortly thereafter, handed her the deed, saying she would go to the notary’s office and get the deed left by Mrs. James with the notary. On going to the notary’s office, however, she found that Mrs. James had taken the deed from the notary. She immediately demanded the deed from Mrs. James, hut delivery of it was refused her. Mrs. Cannell then began the present action to enforce a conveyance. Her complaint was appropriate for the relief sought. Mrs. James answered by denials and by a pleading in the nature of a cross-complaint. In the cross-complaint she alleged in substance that, in repairing the common property, she had borne the principal expense; and that Mrs. Cannell was indebted to her on account thereof in a sum in excess of $975.68. She prayed that an accounting he taken between them, that the sum found due her he declared a lien upon the interest of Mrs. Cannell in the common property, and that such interest he sold in satisfaction thereof. The trial court heard the cause as an action for an accounting. At the conclusion of the evidence, it requested the parties to furnish it with a statement of the account exhibiting their respective claims. These statements were furnished. Mrs. Cannell’s statement showed a balance due from her to Mrs. James of $92.91. Mrs. James’ statement showed the balance as $559.65. The court adopted the statement of Mrs. James, and entered a decree giving Mrs. Cannell thirty days after the date of the decree in which to make the payment, and providing that, on the making of the same, Mrs. James should execute and deliver a deed to the property. It further decreed the sum found due to he a lien on the interests of Mrs. Cannell in the property and directed, in the case the amount due was not paid [602] at the time designated, that the property he sold to satisfy sneh lien as like property is sold under execution. Mrs. Cannell appeals. The single question presented by the appeal is the correctness of the court’s conclusion on the accounting. In the main, we think its conclusions are correct. The principal objection made by the appellant is because of the elimination from her account of certain items expended upon the property of which she took possession. But we think these were not expenditures on the common account of all of the properties. They were expenditures for improvements placed upon her own property and will inure to her sole benefit when the property is deeded to her. Under no correct principle could these he charged to the common account. But there is a manifest error in the computation of the respondent which the trial court adopted. The appellant, in addition to contributing to the improvement of the common property, made certain cash payments direct to the respondent. These cash payments are credited to the appellant as contributions to the common account, the result being that the appellant receives credit as against the respondent for only one-half of the amount paid, whereas the credit should have been for the entire amount. There was also omitted from the respondent’s statement certain cash payments which Mrs James while on the witness stand, admitted receiving. There was omitted also certain cash payments testified by Mrs. Cannell and her mother to have been made to Mrs. James which Mrs. James did not deny further than to say that she had no remembrance of them. It is our opinion that these should have been allowed. Deducting these payments, and correcting the error in the original account, there would remain due the respondent a balance of three [603] hundred fifty-one and 50-100 dollars, instead of five hundred fifty-nine and 65-100 dollars as the trial court found. The trial court disallowed costs to either party in the court below. Owing to the condition of the record, it is our opinion that the costs in this court should also be apportioned, and that no more than one-half of the ordinary taxable costs should be recovered by the appellant. The judgment appealed from is reversed, and the cause remanded with instructions to allow the respondent a recovery of $351.50. The judgment otherwise will not be changed, further than to allow the appellant a reasonable time, not less than thirty days, after the judgment is corrected, in which to pay the - amount adjudged against her. The appellant will be allowed to recover one-half of the taxable costs of this appeal. Main, C. J., Parker, Tolman, and Pemberton, JJ., concur.