Benham v. Columbia Canal Co.

Citations

• 74 Wash. 110
• 132 P. 884
• 1913 Wash. LEXIS 2006

Syllabus

<p>Vendor and Purchaser — Contract—Construction—Forfeiture— Independent Covenants. The vendor’s covenant to furnish water is an independent covenant and does not militate against a forfeiture clause in the contract for failure to pay taxes, interest and a maintenance fee, and default in making improvements within a specified time, where time was made the essence of the contract; especially where the maintenance fee was due before there could be any substantial failure to furnish water, or the ground prepared to receive it.</p> <p>Specific Performance — Parties Entitled — Parties in Default. Where time is the essence of the contract, specific performance will not be decreed at the suit of a vendee in default not acquiesced in by the vendor.</p> <p>Vendor and Purchaser — Rescission by Vendor — Right to Rescind — Indorsement of Notes as Collateral. The indorsement as collateral of notes given for the purchase price of land, does not prevent rescission by the vendor on the vendee’s default, where the notes were subject to withdrawal and under the control of the vendor; nor where the right to rescind, if in abeyance, was revived by withdrawal of the notes and their return to the vendee.</p> <p>Same — Right to Rescind — Set-off. The vendor is not precluded from rescinding the contract on the default of the vendee, as provided in the forfeiture clause, on an account of a set-off which the vendee wanted applied on the contract, where the claim was disputed, the vendor never agreed to make the application, the contract called for payment in “lawful money” and the vendee had also broken his agreement to fence and improve the land.</p> <p>Same — Rescission by Vendor — Acquiescence in Rescission. A. vendee acquiesced in a rescission, and cannot thereafter have a set-off applied in payment of the contract, where the vendor gave written notice of rescission and returned the notes, on the default of the vendee, who retained the notes and thereafter attempted by suit to collect the