After a careful reading of the record in this case, I come to the same conclusion as that at which the trial court arrived, as indicated in its remarks during the final argument and in its memorandum opinion. The substance of the court's views, with which I am in accord, is as follows: (a) Appellant's testimony is not to be believed. (b) When the final payment on the contract matured, there was owing by appellant a total sum of from $710 to $800, which appellant was wholly unable to pay, and so stated. (c) A tender of a deed to appellant would have been a wholly useless and futile thing, because appellant could not possibly have paid the amount due and owing from him; a tender of a deed was therefore unnecessary. Kane v. Borthwick, 50 Wn. 8,96 P. 516, 18 L.R.A. 486; Zane v. Hinds, 136 Wn. 352,240 P. 6; Weisberger v. Smith, 175 Wn. 292, 27 P.2d 324. (d) Appellant was given an opportunity to pay up the delinquent installments before the contract with the subsequent purchaser of the land was entered into, but appellant was unable, and failed, to pay up the delinquency. (e) Appellant abandoned the contract, and it was only when this action to quiet title became imminent that he displayed any interest in the matter.
I think the decision in this case is illogical, inequitable, and wrong. I dissent. *Page 347