Turner v. Wexler

Green, J.

(dissenting)—I am unable to agree with the majority’s basic premise that the 1965 Turner-Wexler agreement and the 1969 Turner-Wexler-Helbling agreement constituted one contract insofar as the Helblings are concerned. Helblings did not sign the 1965 contract. The 1969 agreement signed by the Helblings does not incorporate by reference or make binding the 1965 agreement upon Helblings. It simply provides:

13. That the original agreement of July 27, 1965, for the sale of the real estate by the Party of the First Part [Turners] to the Party of the Second Part [Wexlers] remains in full force and effect except as modified herein.

(Italics mine.) Modifications contained in the 1969 agree-, ment relate primarily to clarification of differences between Turners and Wexlers arising from the earlier agreement. Helblings’ only obligation under the 1969 agreement per*150tains to the installation of streets and sewers. They are not obligated to make any of the payments required of Wexlers under the 1965 agreement, nor to perform any of the other covenants contained in that agreement aside from those concerning streets and sewers. Consequently, as to Hel-blings the two agreements cannot be treated as one. Whether they can be treated as one agreement as to Wex-lers involves a question of fact.

Moreover, I am constrained to disagree with the majority conclusion that forfeiture of the 1965 agreement constitutes performance of the 1969 agreement releasing the Wexlers, Helblings and United Pacific from the obligations created by the 1969 agreement. The forfeiture returned to the Turners all of the property sold under the 1965 agreement, except the three lots deeded to the Helblings pursuant to the 1969 agreement. As to the three lots, the 1965 agreement was not performed in the sense used by the majority, i.e., not all of the property covered by the 1965 agreement was returned to the Turners. Neither was the 1969 agreement performed by the forfeiture because the consideration for the deed of the three lots to the Helblings included a promise to install streets and sewers. The Turners’ obligations under this agreement were executed upon delivery of the deeds to the Helblings, and in my view this action properly lies to recoup damages for Wexlers’ and Helblings’ failure to perform their reciprocal obligation under this agreement. Construing the record in a light most favorable to the nonmoving party, at the very least, an issue exists upon which evidence should be taken to determine whether the parties intended the 1969 agreement to be subject to the forfeiture provisions of the 1965 agreement. This is in keeping with the

principle of universal application that forfeitures are abhorred in the law and will not be declared except in the clearest arid most positive cases, or where the contract [the 1969 agreement] broken so provides in express ' terms. A forfeiture will be avoided if possible.

*151State ex rel. Tacoma v. Sunset Tel. & Tel. Co., 86 Wash. 309, 324, 150 P. 427 (1915).

Finally, I believe the majority errs in affirming the trial court’s award of attorney’s fees as to the Helblings and United Pacific, based upon the provisions in the 1965 agreement. Since they are not parties to that agreement, they cannot recover attorney’s fees from Turners based upon a provision of that agreement.

I would reverse and remand for trial.

Petition for rehearing denied September 4, 1975.

Review denied by Supreme Court November 12, 1975.