66 Wash. 318 | Wash. | 1911
This is an action for rescission of a land purchase contract, and recovery of the amount paid upon the purchase price and the amount expended in improving the land. The plaintiffs rest their right of rescission upon alleged false representations made to them by the defendants as to the location of the north boundary line of the land, and as to the width of the street along that line. From a judgment in favor of the plaintiffs, the defendants have appealed.
On December 1, 1909, appellants entered into a contract with respondents for the sale of a tract of land, in Seattle, fronting 88 feet on the south side of North 70th street, and extending south therefrom 150 feet. The agreed purchase price was $1,300, of which $200 was paid in cash, and the balance of $1,100 was to be paid December 1, 1910, with seven per cent interest, payable semiannually. The contract contained the usual forfeiture clause, by which all rights of respondents as purchasers under the contract should be forfeited, including all sums paid on the purchase price, upon the failure to make payments of principal or interest as therein agreed, “at the election of” appellants. Respondents claim that, prior to entering into the contract and as an inducement to their purchasing the land, appellants represented and stated to them that 70th street, upon which the land fronted, was 25 feet wide, when in fact it is only 15 feet wide. This is the principal false representation involved, and the one upon which the learned trial court rested its decision in respondents’ favor, as indicated by its oral decision.
The court made no formal findings. The evidence shows that there is no outlet from the land other than over 70th street; hence, the width of that street materially affects the
It is contended in behalf of appellants that respondents were in default in the payment of interest at the time of the commencement of this action, and therefore are not in a position to claim rescission of the contract. In support of this contention, counsel rely upon Reddish v. Smith, 10 Wash. 178, 38 Pac. 1003, 45 Am. St. 781, where the general rule is stated that “a party who is in default will not be allowed to rescind a contract.” While that statement of the rule was applicable to that case, it is subject to some qualifications as applied to this case. That case involved an attempt to rescind by the purchaser after default in payments, and after an election by the seller to claim a forfeiture under the terms of the contract. It was, in effect, an attempt to rescind and reclaim the portion of the purchase money paid by the purchaser after all his rights under the contract were at an end. There was in fact no longer any contract to rescind. In this case, there may have been a technical default in payment of the first semiannual interest, though there are circumstances shown in the record rendering even that doubtful; but appellants had not then elected to claim a forfeiture. Indeed, they do not appear to have claimed a forfeiture even yet, so far as this record shows.. It is mani
lt is unnecessary to notice the other alleged false representations, since the one relating to the width of 70th street we think is sufficiently proven and of sufficient consequence to support the judgment. It is clear that there is no error in the amount of the judgment.
The judgment is affirmed.
Dunbar, C. J., Mount, and Gose, JJ., concur.