20 Wn.2d 378, G. L. STANDRING et al., Respondents, v. R. M. MOONEY et al., Defendants, SHOREWOOD, INC., Appellant

[No. 29034. Department Two.      Supreme Court      April 3, 1944.]

G. L. STANDRING et al., Respondents, v. R. M. MOONEY et al.,
                Defendants, SHOREWOOD), INC., Appellant.1

[1] APPEAL AND ERROR - DETERMINATION AND DISPOSITION OF CAUSE -MANDATE AND PROCEEDINGS IN LOWER COURT - COMPLIANCE WITH MANDATE. On the remand of a case to the superior court with direction to determine whether the contract involved in the case was subject to forfeiture, the superior court properly complied with the mandate of the supreme court when it held that the contract was subject to forfeiture; it appearing that, in another action, brought upon the contract, the supreme court had held that it could not be legally performed nor any rights claimed under it.

Appeal from a decree of the superior court for King county, Meakim, J., entered November 24, 1942, upon proceedings on remand. Affirmed.

McMicken, Rupp & Schweppe and Bernard Reiter, for appellant.

Simmons & McCann, for respondents.

ROBINSON, J. -

This case has been before us on a former appeal, Standring v. Mooney, 14 Wn. (2d) 220, 127 P. (2d) 401, and we have but lately reviewed a second case which grew out of the same subject matter, Shorewood, Inc. v. Standring, 19 Wn. (2d) 627, 144 P. (2d) 243.

In the first of the cases, above cited, it appeared that the Standrings, pursuant to a long and involved contract with Mooney, conveyed twenty-nine acres of residential property to Shorewood, Inc., a corporation organized by Mooney. The whole purpose of the contract, the organization of the corporation, and the deeding of the property to it, was to create an agency to market the Standrings' lands. Before the action was begun, some tracts had been sold by Shorewood, Inc., to various vendees. The action was an equitable one, in the nature of a suit to quiet title, not to all of the property conveyed pursuant to the contract, for the vendees

1 Reported in 147 P. (2d) 521.

[1] See 3 Am. Jur. 730.

 Apr. 1944]          STANDRING v. MOONEY.           379

of Shorewood, Inc., were not made parties, but to that portion which had not been disposed of by Shorewood, Inc., by the date on which, it was asserted, Mooney had forfeited the contract. The lower court dismissed the action on the theory that the effect of the deed given to Shorewood, Inc., could not be questioned in an action of that character. This court, on appeal, held that it could, for reasons which may be found fully set out in the opinion. It was, however, unable to make a final disposition of the matter, because it had not been determined in the lower court, nor could it be determined from the record, whether the contract, of which the deed was an integral part, was, as the Standrings alleged, subject to forfeiture; hence, the opinion filed July 9, 1942, concluded with the following direction:

"The judgment is reversed, with direction to the trial court to determine the issues presented by appellants' complaint, in a manner consistent with the views herein expressed, and, unless the respondents refute the appellants' claim of right of forfeiture, enter a decree requiring the respondent corporation to reconvey to appellants all the lots to which it held legal title at the time of service upon respondents of the notice of forfeiture."

While that appeal was pending, Shorewood, Inc., was prosecuting an action against the Standrings on the contract. Judgment was entered in the contract action on October 13, 1942, awarding a recovery against the Standrings upon several of the six causes of action pleaded. Promptly, on October 14th, the Mooneys and Shorewood, Inc., filed a pleading in the first action denominated, "Answer upon Remittitur and Remand," setting up that the judgment entered in the contract action the previous day was an adjudication of the fact that the contract was not subject to forfeiture. The trial court, however, after examining the judgment roll in that case, held otherwise, and entered the following decree on November 24, 1942:

"It is hereby decreed that the defendant Shorewood, Inc., a corporation, is ordered and directed to re-convey to G. L. Standring and Edna Standring, his wife, all of the lots to which it held legal title on January 25, 1941, deed to be delivered within ten days."

 380    JENSEN v. JENSEN. [20 Wn. (2d)

[1] From this decree, the Mooneys and Shorewood, Inc., appealed to this court, and this is the appeal now be fore us. However, after the appeal was perfected and before it came on to be heard, we handed down an opinion in the contract case, which had also been appealed. Shorewood, Inc. v. Standring, 19 Wn. (2d) 627, 144 P. (2d) 243. In this decision, we reversed the lower court and ordered the action dismissed, on the ground that Shorewood, Inc., never had a license as a real estate broker, and could not legally perform the contract or claim rights under it. For this reason and since neither party questions the date employed in the decree now appealed from, it must be upheld as properly carrying out the direction of the court made in our former opinion in Standring v. Mooney, 14 Wn. (2d) 220, 127 P. (2d) 401.

The decree appealed from is, therefore, affirmed.

SIMPSON, C. J., MILLARD, BLAKE, and MALLERY, JJ., concur.