122 Wash. 401 | Wash. | 1922
— This is a plain action at law for damages for fraud and deceit claimed to have been practiced upon the appellants, plaintiffs, by the respondent, defendant, in connection with the sale to appellants by the respondent of real property in King county, described as follows: “Lot 9, block 27, Second Addition to Union City by H. L. Pike. According to the plat thereof on file with the auditor of King county, Washington.” The case was tried to a jury, and at the conclusion of the testimony on behalf of the appellants, the trial court directed a verdict for the respondent. The appeal is from a judgment on the verdict.
Briefly stated, the evidence showed that appellants, seeking a desirable location to build a substantial home, fell into the hands of the respondent corporation, which, through its agents and newspaper advertisements, represented that it was the owner of the addition, platted into lots, blocks and streets, all of which was subject to building restrictions, and that the lots as platted were sixty by one hundred feet and were to remain so. Appellant stated to the respondent that he wanted to build a good home and wanted to be sure the restrictions were on the property. Respondent answered “You don’t need to worry. This is going to be a good district, there will be no apartment houses or stores or offensive buildings, but just a purely residential district as were advertised.” It was further stated and represented that there was twenty-five hundred dollars building restrictions on all the plat.
The advertisements referred to and used by the parties at the time of the negotiations were “building-restrictions not less than $2,500.” Appellant examined the property and entered into an agreement to purchase the lot for the sum of $800, relying on the representations made, without which he said he would not have purchased. He paid $10 and took a deposit
“The statements upon the map circulated by the improvement company, and upon the signs upon the property, and which were repeated by the officers of the company to Eierman and Bischoff, were that the. entire tract of land was restricted, and that all buildings erected thereon must be of brick or stone. This was a representation of an existing fact relating to the property, of the same character as a representation as to. a dividing line or a boundary of land conveyed. ’ ’
On the other hand, from statements of the trial court in disposing of questions of evidence, and remarks upon granting respondent’s motion for a directed verdict, it appears that the trial court concluded that all prior and contemporaneous oral agreements and representations between the parties became merged in the formal written real estate contract and deed subsequently delivered, and that, as they were silent upon
“The issue of inducing fraud, thus present, opened the door to parol testimony as to the whole transaction, regardless of the fact that the resulting contract was in writing.”
There was evidence of substantial damage to the appellants and, in our opinion, the case should not have been taken from the judgment of the jury by means of a directed verdict.
Under the law applicable to the case, as we view it, the court erroneously excluded evidence of subsequent admissions of the respondent to persons other than appellants to the effect that the property was not subject to building restrictions. In the complaint, among
It is assigned as error also that the court refused to allow a third person to testify concerning representations made by the respondent to the appellants as to the building restrictions at the time the appellants were engaged in buying their lot, the witness being present at the time they were made. The record shows, however, that immediately that witness was permitted to testify upon that subject. The offer to prove that some one else had purchased lots in the addition relying on representations that there were building restrictions was, in our opinion, properly rejected. It was both immaterial and irrelevant.
For the reasons mentioned, the judgment is reversed with directions to set aside the directed verdict and grant a new trial.
Parker, O. J., Bridges, and Mackintosh, JJ., concur.