2 Wash. 508 | Wash. | 1891
—This was an action brought upon a promissory note for §350 not yet due, and for §50 attorney’s fee, with an allegation that defendants were about to remove from the State of Washington and the United States, refusing to make arrangement for securing the payment of said debt, with prayer for judgment, and for the issuance of a writ of attachment. Affidavit for attachment was filed. The answer admits the execution of the note, and alleges want of consideration! alleges the fact to be that plaintiff sold defendants a certain tract of land for §1,350, §1,000 of which was paid down, and the note for §350 was given for the balance of the purchase price of said land! that the number of acres bought was understood to be forty, at an agreed price of §33.75 per acre. This land was composed of lot No. 2, and a small portion of the N. W. |- of section 22, township 29 N., of range 5 E. of Willamette meridian. That plaintiff, intending to cheat the defendant and co-defendant, falsely and fraudulently represented to them that said lot 2 contained 36J acres, when in truth and in fact it contained but 26 J acres j and that, wholly and solely relying on the said fraudulent and false representations of plaintiff, defendant and co-defendant, believing there were forty acres in said tract of land, signed the said note for §350. That the plaintiff agreed with and promised defendant, on the 12th day of December, 1889, to deed to them a sufficient amount of land off of the east side of the northwest quarter of said section 22 to make, when added to lot 2, forty acres. That in the following February, 1890, the defendants first learned that lot 2 contained but 26-J acres of land, whereupon they went to plaintiff, and offered and demanded of him to deed them ten acres more land off the east side'1 of the northwest quarter of the northwest quarter of said section 22,
Several instructions were presented and requested by defendants, which, we think, correctly stated the law; but, as the reverse of such instructions was given by the court, we will notice it. Among other instructions, the court gave the following:
e< If you should find that as a matter of fact said plaintiff did represent said tract to contain 36.50 acres when as a matter of fact it only contained 26.50 acres, you must still find a verdict for the plaintiff, unless you further find by a preponderance of the evidence that the plaintiff knew at the time he made such representations that the same were false, and made them with the intent thereby to deceive the defendants, if the mistake (if you find there was a mistake) was a mutual one, and innocently made by the plaintiff, he cannot be charged therefor in this action.”
This instruction was plainly erroneous. If the defendants relied upon the representations of the plaintiff, and were led to believe by such representations that lot 2 contained 36J acres, when in fact it only contained 26J acres, and were induced by such representations to purchase said
There is another phase of this case which is fatal to the judgment. This action was brought upon an alleged debt not yet due. The complaint alleged that the defendants were about to depart from the state without making any provision for the payment of the note, and also that the defendants had disposed of their property with intent to delay and defraud their creditors. These allegations were denied by the answer and no proof was offered at the trial in support of them. These are material allegations to the complaint, and the facts therein set forth must be proven, like any other fact, to authorize judgment. See Cox v. Dawson, ante, p. 381 (decided by this court at this term).