H.D. YOUNKMAN et al., Respondents,
vs.
C.D. HILLMAN et al., Appellants
No. 7985
SUPREME COURT OF WASHINGTON, DEPARTMENT ONE
53 Wash. 661, 102 P. 773
June 26, 1909
Appeal from a judgment of the superior court for King county,
Charles E. Shepard, Esq., judge pro tempore, entered January 7,
1909, upon findings in favor of the plaintiffs, after a trial on
the merits before the court without a jury, in an action on
contract.
LOTTERIES -- CONTRACT -- CONSTRUCTION -- "PURCHASERS." An offer
of a prize to the "purchasers" of a lot in a townsite cannot,
before completion of his contract, be taken advantage of by one
who had entered into the usual land contract for purchase on
installments, title remaining in the vendor until all payments
were made, with right of forfeiture in case of default.
Fred'k R. Burch, for appellants.
O. A. Tucker and Alfred E. Parker, for respondents.
MORRIS, J. RUDKIN, C.J., GOSE, and CHADWICK, JJ., concur.
FULLERTON, J., concurs in the result. MORRIS
{*661} On the 26th day of October, 1907, the appellants published
an advertisement of the sale of lands belonging to them, situate
at Boston Harbor. Among other inducements held out to intending
purchasers, was the following: "$ 500 for the first baby born."
On the next day they ran an excursion from Seattle to Boston
Harbor, and on the trip distributed circulars containing a
similar offer in these words: "$ 500 in gold coin will be given
away to the first baby born." On November 10, a second excursion
was run. Defendant Hillman, being on board, announced to those
present that he would pay a reward of $ 500 to the first married
couple to whom a child should be born upon any portion of the
property known as Boston Harbor, conditional only upon the
purchase by contestants of lots within the Boston Harbor plat.
Plaintiffs, being authorized by Morther Church and the law of the
land, and deeming themselves {*662} possessed of other necessary
qualifications, gazed upon the golden crown, held out to the
victors in this tournament of love, with longing eyes, and then
and there announced their intention of entering the contest.
Defendant Hillman, being somewhat of a boomer and doubtless being
of the same mind as a distinguished citizen of this Nation,
looked with favoring eyes upon any increase in the birth rate,
and instructed plaintiffs how to equip themselves for the race by
becoming purchasers of Boston Harbor lots, it being remembered
that this was the one evidence of good faith demanded from all
contestants, before entry, and the only condition under which
competition was to be permitted. Plaintiffs, confident of their
ability to win the prize, duly entered into the required contract
on November 11, 1907, whereby they agreed to purchase a lot in
Boston Harbor for the sum of $ 1,000, paying $ 10 down, giving a
chattel mortgage upon a piano in the sum of $ 90, and contracting
to pay $ 10 each month thereafter, with quarterly interest, until
the purchase price should be paid, when they were to receive a
good and sufficient deed.
It was further provided that, in case of failure in making the
payments as due, the contract might be rescinded at defendants'
election, and all sums then paid upon the contract should be
forfeited; time being of the essence of the contract. Plaintiffs
took possession of their lot and, on December 7, 1907, the stork
made its first visit to Boston Harbor, leaving a baby girl at
plaintiffs' home. Flushed with pride upon the realization of
their fondest hopes, plaintiffs hastened to the defendant Hillman
to apprise him of the happy event, choosing December 17 as the
day for making the glad announcement; when, much to their
surprise and disappointment, Hillman refused to partake of their
joy, and heartlessly and coldbloodedly referred them, like
Shylock of old, to the obligation of their bond, insisting that
they had not as yet complied with its terms in that they were not
purchasers. Being unable by argument or entreaty to dissuade
Hillman from this position, they brought suit, and finding the
lower {*663} court in a more complacent mood than Hillman, they
obtained a judgment against both defendants in the full sum of $
500; whereupon the defendants became aggrieved and, seeking to
deprive plaintiffs of the fruits of their victory, took an
appeal.
It is apparent that the only question of law involved in this
appeal is, Were the plaintiffs purchasers? Broadly speaking, a
purchaser is one who acquires title otherwise than by descent;
but in its generally accepted meaning it refers to the
acquisition of property for a valuable consideration. The
contract entered into between the parties hereto was in no sense
a transfer of the title. Appellants divested themselves of no
rights nor interests in the property, except possession and those
rights incident to possession. Their contract was to convey by a
good and sufficient deed upon respondents' compliance with all
the terms and conditions to be by them performed. There is no
language in the contract that can be interpreted into a present
sale. The terms adopted by the parties to express their intention
are: "party of the first part will sell;" "party of the second
part will purchase;" and these agreements are to be performed
upon full compliance with other and attendant agreements. The
whole tenor and effect of the contract is clearly in
contemplation of a future and not a present sale. Such contracts
have invariably been held to be contracts for title or agreements
to convey, not ripening into even an equitable title until the
vendee has placed himself in such a position by performance that
he can compel a conveyance. Chappell v. McKnight, 108 Ill. 570;
Nunngesser v. Hart, 122 Iowa 647, 98 N.W. 505; Stewart v. Fowler,
37 Kan. 677, 15 P. 918.
The obligation of the vendor in these contracts is similar to
that of the obligor in a bond for a deed, and it is held that "a
bond to convey land is not a title, but simply a contract to
convey title." Martin v. Wright, 21 Ga. 504; Dahl v. Pross, 6
Minn. 89. We cannot regard respondents as purchasers, there being
no investment of any title in them; nor, {*664} under the
contract, any passing of title until a compliance with its terms.
A purchaser means one who has acquired the title, not one who
holds under a bond for a conveyance. Gilpin v. Davis, 2 Bibb
(Ky.) 416.
In Reddish v. Smith, 10 Wash. 178, 38 P. 1003, 45 Am. St. 781, we
held that contracts providing for forfeiture of installments paid
at option of vendor, as does this contract, were conditional
sales; and in Pease v. Baxter, 12 Wash. 567, 41 P. 899, and
Churchill v. Ackerman, 22 Wash. 227, 60 P. 406, the holding was
that such contracts convey no title. We are inclined to regard
these authorities as decisive. Respondents, then, not being
purchasers, were not in a position to enforce their demand.
The judgment is reversed, and the cause remanded with
instructions to dismiss.
DISPOSITION
Reversed.
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