
    [No. 15858.
    Department Two.
    July 22, 1920.]
    E. R. Hunter, Respondent, v. Colin O. Radford et al., Appellants, George W. Thorne et al., as the Seattle Hotel News, Defendants.
      
    
    Sales (54)—Breach-—Rescission by Buyer—Failure to Deliver Possession. Under a contract for the sale of the personal property and leasehold of a hotel, the contract to be performed within ten days and providing that time was the essence thereof, and that the title to the property should be made good within such time or the agreement to be void, failure of the defendant to deliver possession of the property through failure to acquire title thereto entitles the purchaser to rescind the contract and recover earnest money paid thereon.
    Sabie (59)-—Rescission by Buyer-—Conditions Precedent—Tender of Purchase Price. Conceding that the delivery of possession and tender of payment were concurrent acts, under a contract for the purchase of a lease and hotel equipment the purchaser may rescind and recover earnest money paid, without first tendering payment and demanding possession, it being known that he had the money in his possession and was able and willing to perform, hut that defendant was unable to deliver because unable to acquire the right of possession within the time limited.
    Appeal from a judgment of the superior court for King county, Jurey, J., entered January 13, 1920, upon findings in favor of the plaintiff, in an action on contract, tried to the court.
    Affirmed.
    
      Tucker & Hyland and William C. Keith, for appellants.
    
      Howard O. Durk, for respondent.
    
      
       Reported in 191 Pac. 794.
    
   Mount, J.

In September, 1918, E. R. Hunter entered into a written contract with the Seattle Hotel News, acting as agent for Colin O. Radford, as follows, omitting immaterial portions:

“Seattle, Wash., Sept. 7, 1918.
“Received of E. R. Hunter two thousand dollars as earnest money and in part payment for the purchase of certain personal property in Multnomah county, Oregon, particularly described as follows: All furniture, equipment, fixtures, electric bus, leasehold of Cornelius Hotel, Park and Alder streets, Portland, for thirteen years, at $890 per month, together with all improvements thereon, which we have this day sold to the said E. R. Hunter for the total purchase price of thirty-five thousand ($35,000) dollars on the following terms, to wit: Two thousand ($2,000) dollars as herein receipted for, eight thousand dollars on date of possession on or before September 16th, 1918, and balance of $25,000 in monthly payments of $600 per month until satisfied, with interest on balance of 7 per cent per annum, payable semi-annually. . . .
“It is agreed that if the title to said property is not good or cannot be made good in ten days, or if the owner does not approve of the above sale, this agreement is void, and the earnest money herein receipted for shall be refunded, but if the title to said property is good and the above sale is approved by the owner, and the purchaser neglects or refuses to comply with any of the conditions of this sale, then the earnest money herein receipted for shall be forfeited as liquidated damages to the owner of said property. . \ .
“Time is the essence of this contract.
“Seattle Hotel News.
“By S. P. Barash.
“I hereby agree to purchase the above property on the above terms. E. R. Hunter.”

On the 16th day of September, Mr. Hunter employed a manager for the hotel and sent him from Seattle to Portland to receive the property on the 16th day of September. After this manager had gone to Portland, the agent in Seattle informed Mr. Hunter that the owner of the building would not be ready to deliver possession on the 16th, but that he would be ready to do so very shortly. On the 23d of September, 1918, Mr. Barash, the agent in Seattle, informed Mr. Hunter that the owners of the hotel were ready for bim to take possession. Thereupon,. Mr. Hunter procured $8,000 from the bank in Seattle and he and Mr. Barash went to Portland for the purpose of closing’ the contract. When they arrived in Portland, Mr. Hunter was informed that possession could not be given at that time. He waited until the 27th day of September, when he demanded the return of his money because possession of the hotel had not been given. Thereafter he brought this action to recover the deposit of $2,000 which he had paid at the time the contract was entered into. The agents, George W. Thorne, S. S. Barash and S. P. Barash, doing business as the Seattle Hotel News, and Mr. Eadford and his wife, were all made parties.

After issues were joined, the case was tried to the court without a jury. Upon the trial of the case, when it appeared that the $2,000 had been paid over to Mr. Radford, who was supposed to be the owner of the property, and when it appeared that Mr. Radford had approved the contract, the agents were dismissed from the action. The trial proceeded as against Mr. Radford and wife, and resulted in a judgment in favor of the plaintiff, Mr. Hunter, for $2,000. The defendants Radford and wife have appealed from that judgment.

On the trial of the case, the evidence was conclusive to the effect that Mr. Hunter had paid the $2,000 at the time the contract was signed; that he went to Portland with the agent who prepared and signed the contract; that he took $8,000 along with him, which fact was known to this agent, for the purpose of obtaining possession of the property on the 16th or later, if it could be given. When he arrived in Portland, Mr. Hunter learned that title to the property had not been acquired by Mr. Eadford and Mr. Eadford was not in a position to deliver possession. Mr. Hunter waited until September 27, and then, when possession was not offered him, he demanded the return of his $2,000, which was refused. The defense was that the time was extended until October 1, and that, after October 1, Mr. Hunter himself defaulted in the payment, and therefore, under the contract, he was not entitled to the return of his $2,000. Whether or not there was an extension of time was a disputed question. Mr. Hunter testified positively that he made no agreement to extend the time to October 1. Mr. Radford, on the other hand, testified that there was an agreement to that effect. Upon this disputed testimony, the trial court was of the opinion, we think correctly, that there was no extension of the time to October 1 in which the contract should be performed.

The contract upon its face was to be performed within ten days, namely, on September 16, 1918. It provided that time was the essence of the contract. The contract also provided that $8,000 was to be paid on the date of possession, and that, “if the title to said property is not good or cannot be made good in ten days, this agreement is void.” We think there can be no escape from the conclusion that, after the 16th day of September, 1918, if Mr. Hunter was not put in possession of the property, he was entitled to his $2,000 back. He was not put in possession of the property within that time, and he therefore had a right to rescind the contract at any time. He did so on the 27th day of September.

It is argued by the appellants that, before the respondent was entitled to rescission, it was his duty to tender the payment of $8,000. We think, according to the terms of the contract, the $8,000 was not due until possession was given; but if we concede, for the purposes of this case, that the delivery of possession and the tender of payment were concurrent acts, the evidence clearly shows that Mr. Hunter had the money in his possession with which to make the payments, and Mr. Barash, the agent of the appellant, knew this fact and knew that Mr. Hunter was in Portland for the purpose of taking possession, and up until the 27th day of September, the appellant was not in a position to deliver possession, because he, at that time, had not acquired the right of possession of the property, and did not do so, according to his own evidence, until October 1, 1918. Under these circumstances, it was not necessary for the respondent to tender the $8,000 and demand possession, because it was known that appellant at that time could not deliver possession.

The judgment of the trial court was clearly right and is therefore affirmed.

Holcomb, C. J., Fullerton, Tolman, and Bridges, JJ., concur.  