Hicks v. Corbett

DORAN, J.

This is an appeal from a judgment entered after the sustaining of a demurrer to appellant’s first amended complaint without leave to amend. The first cause of action seeks a rescission of written agreements for the exchange of certain real and personal properties of appellants in Santa Barbara, for real and personal properties of respondents Wil

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liam and Gertrude Corbett, in the state of Washington, based on alleged failure of consideration. Another count sought rescission on the ground of fraud.

Appellants’ original complaint in this action set up the fact that on February 8, 1952, appellant Grady Hicks brought an action in the Superior Court of King County, Washington, seeking specific performance of the contract of exchange. The appellees cross-complained in the Washington action, asking for rescission, based on alleged fraud of appellants. Appellant Lydia Joan Hicks was joined as an additional cross-defendant. On June 2, 1952, the Washington court dismissed the cross-complaint for rescission, and decreed specific performance of the contracts of exchange, but as conditions precedent demanded certain performance by appellants within 60 days, providing that on a failure of such performance the court would enter such other judgment as would do justice between the parties.

On September 30, 1952, the Washington court found that the Hicks, now appellants, had not performed the conditions precedent which required the furnishing of title insurance covering the Santa Barbara real estate, and the payment of $2,214.29 to respondent Corbett, and that the latter had been ready, willing and able to convey the Washington real estate to the Hicks.

The Washington court further found that “in said exchange transaction defendants paid unto plaintiff the sum of $1000.00 cash, paid plaintiffs’ real estate commission in the sum of $2,000.00 cash to the broker, Mr. King, and delivered the title to the vessel ‘Rambler’ to plaintiffs, who in turn sold it to an innocent purchaser for $6,500.00 cash; that defendants did not convey to plaintiffs the King County (Washington) real estate of the value of $5,000.00; that plaintiffs conveyed to defendants’ nominee, Peggy Harris, the Santa Barbara property ... of the approximate value of $5,000.00” The court then found that the Hicks had “no claim, right, title or interest in either King County property or the Santa Barbara property,” and gave judgment against the Hicks in favor of the Corbetts for $4,500. This amount was the difference between a total of $9,500 made up of the $1,000 cash, $2,000 paid to plaintiffs’ broker, and $6,500 value of the vessel “Rambler”; and $5,000 representing the value of the Santa Barbara real estate conveyed by plaintiffs to the defendants’ nominee.