Sunday, November 29, 2009
Monday, November 16, 2009
On my very first power cranks ride, I lasted an hour. This was pretty good since I thought I'd only make it thirty minutes. The next ride I rode for two, easy hours. The third ride I could only do fifteen minutes. I could barely walk the following day.
Power cranks make you feel like a duck out of water. For the first time in a long time, I had the fear of falling when I started or stopped. This is simply because the cranks does not come up when you start to roll - it just hangs there, looking for some attention. You have to try to clip in while the other leg stokes the engine. A bizarre sensation.
This unusual sensation has one beneficial side affect. When I roll from a stop sign or light, motorist seem to pause. Too often, the rednecks throw beer cans. The hilarity of a cyclist with an apparently broken pedal causes a certain cease fire from the revving machines of steel. That is nice.
I was also amazed to discover that my pedal strokes were lame. About every eighth stroke, my kick over the top just sort of petered out. Power cranks are unforgiving. If your stroke falters, the bike will sputter. You realize that each stroke is part of the engine and if one of two pistons stops, the machine backfires.
This, of course, is the point. I have heard the experts talk about "pedal efficiency." It is hard to understand that concept with normal cranks because one leg can so easily depend on the down stroke of the other to help it over. With power cranks, one learns immediately what is meant by pedal efficiency.
There is also a balance thing going on. I have not quite figured it out. I will report back but I noticed that the power required to stroke with power cranks sometimes causes my knees to go in a weird direction. Not every stroke but when I am fatigued.
The best thing of all is that power cranks is time efficient. Training is the cold and rainy weather sucks. A two hour ride feels like a three hour ride or more. Makes sense. Candidly, I would much rather suffer like an animal on cranks in the rain for two hours than spend fifteen seconds on the trainer indoors. Just me.
In any event, check out power cranks. Here is the site.
Thursday, June 11, 2009
I received a settlement demand today from an attorney who argued that the disputed lease was unenforceable because it was not acknowledged pursuant to RCW 64.04.020. This statute provides that “[e]very deed shall be in writing, signed by the party bound thereby, and acknowledged by the party before some person authorized by this act to take acknowledgments of deeds.”
Yet, courts in
This makes sense. In conveyances of real property, legal title passes from Seller to Buyer for consideration, i.e., money. There is often a mortgage and old liens are paid off. A lot of moving parts. Suppose a parcel of real estate is sold through financing but somehow the lender's Deed of Trust was not notarized. (See note on acknowledgement). Recording the Deed of Trust gives notice to the world that the property is mortgaged and that, upon default, the proceeds from a foreclosure will be paid in the order that the liens were filed. It would be an injustice to disallow a valid claim because the Deed was not notarized. It has long been established that partial performance takes the parties out of the statute of frauds.
What does that mean? the Washington State Supreme Court has long held that an agreement to convey an estate in real property, though required by RCW 64.04.010 and 64.04.020 to be in writing with the formal requisites specified for a deed, may be proved without a writing, given sufficient part performance; and that specific performance will be granted where the acts allegedly constituting the part performance point unmistakably and exclusively to the existence of the claimed agreement. See, e.g., Mobley v. Harkins, 14 Wn.2d 276, 128 P.2d 289, 143 A.L.R. 88 (1942); Richardson v. Taylor Land & Livestock Co., 25 Wn.2d 518, 171 P.2d 703 (1946); Granquist v. McKean, 29 Wn.2d 440, 187 P.2d 623 (1947); Ormiston v. Boast, 68 Wn.2d 548, 413 P.2d 969 (1966); Ferguson v. McBride, 69 Wn.2d 35, 416 P.2d 464 (1966); Beckendorf v. Beckendorf, 76 Wn.2d 457, 457 P.2d 603 (1969). This, the doctrine of partial performance, exists as a means of removing an oral contract for the lease or sale of real property from the statute of frauds. The doctrine requires at least two of the following elements:
(1) delivery and assumption of actual and exclusive possession;
(2) payment or tender of consideration; and
(3) the making of permanent, substantial and valuable improvements, referable to the contract. Powers v.
The part performance doctrine also applies to written agreements failing to satisfy the statute of frauds. 2 A. Corbin, Contracts § 420, at 452-53 (1950) ("Being sufficient to enable the plaintiff to prove all the terms of an oral contract, it is necessarily sufficient to allow the use of oral testimony to supplement an existing memorandum that is deficient in some material respect."). Kruse v. Hemp, 121 Wn.2d 715, 724-25, 853 P.2d 1373 (1993).
Thus, even though a lease is technically a conveyance and the Statute of Frauds applies, that the lease was not notarized means nothing. As a common practice, business leases are never recorded. They are not recorded because they do not involve mortgages subject to foreclosures. There are rarely competing security interests. Thus, why record them? Even if they were recorded, case law is clear that a breaching party can not escape liability just because of a simple notary defect. Further, the court can look to the performance of the parties to determine whether a conveyance or a contract existed, in this case a lease.
I guess opposing counsel thought I just fell off a turnip truck. Bizarre expression.
Note on acknowledgments:
Acknowledgments of deeds, mortgages and other instruments in writing, required to be acknowledged may be taken in this state before a justice of the supreme court, or the clerk thereof, or the deputy of such clerk, before a judge of the court of appeals, or the clerk thereof, before a judge of the superior court, or qualified court commissioner thereof, or the clerk thereof, or the deputy of such clerk, or a county auditor, or the deputy of such auditor, or a qualified notary public, or a qualified United States commissioner appointed by any district court of the United States for this state, and all said instruments heretofore executed and acknowledged according to the provisions of this section are hereby declared legal and valid.
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