Cunningham v. Duncan

The opinion of the court was delivered by Dunbar, J. — It is exceedingly difficult to determine from the testimony in this case whether or not the plaintiff has any equities which can be enforced, so far as the defendants Murphey and Tabor are concerned. In the absence, however, of an affirmative opinion to the contrary we will accept the conclusions of fact of the judge who tried the case as correct, so far as they were stated. So far as the demands of the plaintiff against the defendants J. R. and Sarah E. Duncan are concerned, we are of the [508] opinion that the plaintiff should have judgment for the sum of six hundred dollars, with interest thereon since October 23, 1890. The only question involved, then, is, can the court, upon the failure of the petition for specific performance, assess damages.in lieu thereof? Without going into a general discussion of this interesting question, which was reviewed at some length by this court in Morgan v. Bell, 3 Wash. 554, the testimony in this case leads us to the conclusion that plaintiff was unaware of the inability of the defendants to convey, by reason of the mortgage to Bibb, until after the commencement of the action, and that the suit was commenced in good faith, which, we think, entitles her, especially considering all the circumstances of the case, to a judgment for the money she had paid. The defendants Duncan rely largely on the case of Drown v. Ingels, decided by this court at its January term, and reported in 3 Wash. 424. But nothing that was decided in that case affects the case at bar. In that case time was made the essence of the contract, and it was especially agreed that if certain deferred payments were not paid when due, plaintiff would forfeit all the money paid down, and all her rights under the contract. But here there was no such agreement, and the action of both the parties plainly shows that time was not understood to be the essence of the contract. The judgment of this court is, that the defendants, Alonzo M. Murphey, Mrs. Alonzo M. Murphey, It. G. Tabor and Mrs. R. G. Tabor, have and recover of the plaintiff, Mary €. Cunningham, for their costs of this appeal, and that the plaintiff, Mary C. Cunningham, have and recover ajudgment against the said defendants, J. R. Duncan and Sarah E. Duncan, for the sum of six hundred dollars, with interest on the same at the rate of ten per cent, per annum since the 23d day of October, 1890, together with costs of [509] appeal and costs of trial in the lower court; and that the defendants, Murphey, Tabor and Boyer and Sivyer, have judgment against the defendants, J. R. Duncan and Sarah E. Duncan, for their costs of the lower court, and it is so ordered. Anders, O. J., and Hoyt, Scott and Stiles, JJ., concur.