85 Wash. 472 | Wash. | 1915
Action to rescind an exchange of real estate. Appeal from a judgment of dismissal.
Appellants were the owners of two lots at Everett, upon which there was a small house and a mortgage of $550. Respondents were the owners of a farm of 160 acres in Adams county, upon which there was a like incumbrance of $550. An exchange of these properties was arranged; appellants paying in addition $800 in cash, and giving respondent Frederick A. Koch a note for $700. Rescission is asked for upon the ground of false representation made by respondent Frederick A. Koch as to the character of the Adams county land. These representations were that the land was good wheat land; that 110 acres had been seeded to wheat in the fall of 1912, and 25 acres to rye; that the land produced
The lower court found that the appellants’ Everett property was worth $1,500; that the Adams county land was worth $2,000; that respondent Frederick A. Koch substantially represented the character of the Adams county land, and the buildings thereon, and, before the exchange was completed, advised appellant Neis Christensen to make a personal examination of the Adams county land, offering, through himself or agent, to loan him the necessary money for the trip, and that if the land was found to be other than as represented, to pay all expenses of the trip. Based upon this last finding, a conclusion of law was made that appellants were reckless in not availing themselves of the offer. These findings, if supported by the evidence, would support the judgment under the rule so often announced, that findings of the lower court made upon conflicting evidence will not be disturbed, unless from an examination of the record we can say the preponderance of the evidence is against the findings. Having read the record, we have reached the conclusion that the preponderance of the evidence does not sustain the findings, but supports the contention of appellants. This calls for a reversal of the judgment. Borde v. Kingsley, 76 Wash. 613, 136 Pac. 1172.
Upon the question of the value of the respective properties, appellants alleged in the complaint that the Everett property was of the value of $2,500, and upon his examination as a witness, Neis Christensen so testified. Respondent, in the answer, denied the Everett property “was worth the sum of $2,500, or to exceed $2,000.” Frederick A. Koch testified that the value did not exceed $1,500. This was the only testimony upon this point. The value should have been found to be $2,000 under the admission of the pleading. Appellants alleged the Adams county land was worth $900. Respondents alleged it to be worth $4,000. The only evidence in the record as to the value of the Adams county land was
The land was represented as good wheat land. The evidence shows that approximately 60 acres was untillable, and that this farm was part of a two township section of Adams county that was rated as third class land. It was represented that 100 acres had been seeded to wheat and 25 acres
We will not go into the evidence further. Enough has been stated to show that the Adams county land was not as represented, and the case falls within the rule of Wooddy v. Benton Water Co., 54 Wash. 124, 102 Pac. 1054, 132 Am. St. 1102, and the numerous subsequent affirming cases, many of which are collected in Becker v. Clark, 83 Wash. 37, 145 Pac. 65. These cases hold that a vendee may rely upon representations of his vendor where the property is at a distance, or where for any reason the falsity of the representation is not readily ascertainable. The lower court evidently gave great weight to respondent’s offer to pay the expenses of appellant to Adams county, and in his conclusion charges appellant with recklessness in not availing himself of such offer. Appellant’s rights are not to be judged by such
Reversed and remanded for further proceedings in accordance with this opinion.
Crow, Ellis, Fullerton, and Main, JJ., concur.