Ankeny v. Clark

Action by Van Buren Clark against Levi Ankeny to recover the value of certain wheat delivered. Judgment for plaintiff. 20 Pac. Rep. 583. Defendant brings error. Affirmed.

Statement by Mr. Justice SHIRAS: It appears from the record in this case that on October 20, 1882, at Walla Walla, in Washington Territory, Levi Ankeny, the plaintiff in error, entered into a contract with Van Buren Clark, the defendant in error, by which Ankeny agreed to sell and convey to Clark two quarter sections of land in Walla Walla county, in consideration of 12,000 bushels of wheat, to be delivered in three annual installments of 4,000 bushels each, and of the assumption by Clark of a mortgage of $3,000 on the land. This contract was evidenced by three written instruments as follows:

(1) A bond from Ankeny to Clark in the penal sum of $10,000, conditioned to convey the land to Clark upon his paying the consideration according to agreement.

(2) A 'wheat note' from Clark to Ankeny, which reads as follows:

'Walla Walla, W. T., Oct. 20, 1882. For value received I promise to pay to Levi Ankeny, or order, twelve thousand (12,000) bushels of good, merchantable wheat, said wheat to be delivered to the owner of this note at any railroad station in Walla Walla county, Washington Ty., and payments to be made as follows: On or before Oct. 15th, 1883, four thousand (4,000) bushels; on or before Oct. 15th, 1884, four thousand (4,000) bushels; and on or before Oct. 15th, 1885, four thousand (4,000) bushels; the owner of this note to furnish sacks for said wheat.'

(3) A chattel mortgage from Clark to Ankeny to secure the payment of the wheat note.

Under this agreement, Clark entered into possession of the land, and continued in possession of it until the fall of 1886.

In performance of this contract, Clark, in December, 1883, delivered to Ankeny 4,167 bushels of wheat, and in September, 1885, he delivered 8,600 bushels, making 767 bushels more than the contract called for. Ankeny accepted this wheat in fulfillment of the contract.

After the delivery of the wheat to Ankeny, Clark demanded a deed for the land. This Ankeny neglected to give, putting Clark off from time to time upon one pretext or another, until Clark, becoming impatient, finally insisted either upon a deed to the land or payment for his wheat. Clark was then referred by Ankeny to the latter's attorneys, who informed him that he could have a warranty deed to the quarter on the even section and a quitclaim deed to the quarter on the odd section, or the 'railroad land,' as it was called, and they further informed him that if the Northern Pacific Railroad Company should not get title to the odd section, and he should be obliged to procure title from the government, Ankeny would pay the necessary expenses of obtaining title in that way. This does not seem to have satisfied Clark, and on November 16, 1886, he served upon Ankeny the following notice:

'Walla Walla, W. T., Nov. 16, 1886. Levi Ankeny, Esq., Walla Walla, W.T.-Dear Sir: I have performed my part of the contract in the purchase of the land described in your bond to me. I have learned that you have no title to one hundred and sixty acres of it. You have refused to give me anything more than a quitclaim deed to this part of the land. I cannot accept such a deed. It was not what the contract called for. Unless within five days from this date you convey a perfect title to me to the whole of the land described in the bond by a good and sufficient conveyance, I will, at the end of that time, abandon this land, and surrender the possession to you, and look to you for such compensation as the law allows me on account of violation of the contract. Resp'y, V. B. Clark.'

Ankeny seems to have paid no attention to this notice, and Clark, several days thereafter, taking a witness with him, went to Ankeny's bank, and formally surrendered possession of the land to Ankeny. Clark then abandoned possession of the land, and has not occupied it since.

Subsequently to all this, and on the 19th day of March, 1887, Clark brought this action in the district court of the first district to recover from Ankeny the value of 12,767 bushels of wheat delivered under the contract. The case was tried before a jury, who, upon the direction of the court, brought in a verdict for the plaintiff, and judgment was given upon the verdict.

The defendant took the case in error to the supreme court of the territory of Washington, which affirmed the judgment of the district court. The case is now before this court on error to the supreme court of the territory of Washington.

John H. Mitchell, for plaintiff in error.

[Argument of Counsel from pages 348-351 intentionally omitted]

John B. Allen, for defendant in error.

Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.