117 Wash. 16 | Wash. | 1921
Lead Opinion
The appellant, Horowitz, brought this action against the respondents, Kuehl, Wood and Penny, to recover upon a promissory note, payable to himself or to his order, in the sum of two hundred
The errors assigned on the appeal are twenty-five in number, hut as many of them suggest the same question in different forms only, separate consideration of each of them is not required.
In the answer, the false and fraudulent representations inducing the sale were charged in the following language:
“That the said plaintiff represented to said defendants that the musicians’ directory published by the National Musicians’ Directory Company was the only musicians’ directory published in the states of Washington, Oregon, Utah, Idaho and California; that the National Musicians’ Directory Company had a copyright and no other musicians’ directory could he published in said states; that the National Musicans’ Directory was the only directory of musicians published in the United States; that the National Musicians’ Directory then and there had such a high standing with the musicians in the northwest that 95 per cent of the*18 musicians would renew their subscriptions without solicitation ; that the plaintiff had made over $10,000 by selling the directory in Chicago alone, and that he had made $80,000 by publishing these directories.”
The appellant moved to strike these allegations, and after its motion had been overruled, interposed a general demurrer to the cross-complaint, which was likewise overruled. The first of the errors assigned are based upon these rulings, the contention being that the representations charged are not actionable, even though falsely and fraudulently made. The argument is that the statements are in part too remote, and are in part nothing more than what is commonly denominated “trade talk” or “seller’s praise,” and relate in part to future events, not to an existing fact. None of these objections is, in our opinion, well taken. They related, for the greater part at least, to past and existing facts, and were of such a nature that they would have greatly added to the value of a thing purchased, if true. Particularly, objection is made to the allegation that the appellant had made more than ten thousand dollars by selling the directory in Chicago alone, and had made eighty thousand dollars by publishing the directories. It may be that these statements were not intended to be understood literally, and it may be that the purchasers had no right to so understand them, but this is a very common way of representing a thing as having value, and in this sense the purchaser had a clear right to understand them. False representations as to the value of a thing sold, when made with intent to deceive, and when they do deceive the purchaser to his injury, are actionable. Particular objection is made also to the statement that the directory had such high standing among the musicians of the northwest that ninety-five per centum of them would renew their subscriptions to the publication
The second branch of the errors assigned relate to the admission of evidence. These, for the most part, suggest in another form the questions already noticed and need no further consideration. Among the assignments not so suggested are the following: In support of the allegation in the answer to the effect that the appellant had falsely represented the standing of the directory among musicians of the northwest, the respondents called one of their number and interrogated him as to the standing of the directory among such musicians. He answered that it had no standing, and on further questioning answered that he had acquired his knowledge of the fact by inquiry from among the musicians. A motion to strike the testimony was overruled, and error is predicated thereon for the stated reason that the testimony was hearsay. We do not so understand the rule. As said by Professor Greenleaf in his work on Evidence, vol. 1, § 101:
". . . evidence of general reputation, reputed ownership, public rumor, general notoriety, and the*20 like, though composed of the speech of third persons not under oath, is original evidence and not hearsay; the subject of the inquiry being the concurrence of many voices to the same fact.”
On this principle the witness was competent to testify to the fact. Testimony was also admitted, over objection, concerning acts and conduct of the appellant subsequent to the consummation of the sale. It was objected to this that it tended to show a breach of warranty of the contract of sale rather than fraud in the execution of the contract. But, without setting-out the evidence at length, it is enough to say that it bore upon the good faith of the appellant and was evidence which the jury were entitled to consider when considering the question whether the sale was induced by false and fraudulent representations.
The remaining assignments relate to instructions given the jury and to instructions requested which the court refused. They require no special consideration. The instructions given covered the entire issues, were impartial, and are commendable for their extreme clarity. The court in this regard performed its full duty and no error resulted, even though certain of the requested instructions might have been properly given.
The judgment is affirmed.
Parker, C. J., Bridges, and Holcomb, JJ., concur.
Dissenting Opinion
(dissenting) — The pleadings and the proof, as I understand them, present no facts constituting actionable fraud. The representations which were made relate largely to things which were in the nature of expectations, and those which can he interpreted as being statements of past or present facts were not the ones which induced the making of the contract. I therefore dissent.