79 Wash. 420 | Wash. | 1914
The purpose of this action was to reform a real estate contract, and for other relief.
The plaintiff thereupon asked leave to amend the complaint by adding McMurray’s name as a party plaintiff, and setting out that the assignment to Lyle was as trustee only and carried no beneficial interest. To this the defendants
The evidence shows that the northern boundary of the tracts of land sold was the Puyallup river. This river, following an irregular course, caused the northern boundary of the land to be likewise irregular. At the time of the purchase, it was represented by both the defendant James Cunningham and his agent that the tracts of land contained 60 acres. While McMurray was looking over the land with a view to purchasing it, in company with the agent and Cunningham, the latter pointed out that the northeast comer of the tract as shown by the government survey was about in the center of the river at that point. It was in fact about 600 feet north of this. The river, since the making of the government survey, had gradually changed its course, cutting into the land which was the subject of the sale. Cunningham stated at this' timé that there had been cut away at the northeast corner about half an acre, and that this was compensated for by an acquisition of a like amount of land at the northwest comer, by reason of the action of' the river at that point. Owing to the irregularity of the northern boundary of the land due to the winding course of the river, McMurray was unable to estimate with accuracy the number of acres in the tracts of land. :
It is first argued that the court erred in permitting the amended complaint to be filed. It must be remembered that McMurray was the real party in interest. He had the right in some form of action to have his claim of fraud litigated. Even if, technically, the ruling was erroneous, it was not prejudicial. The cause was continued upon terms, and the defendants were given full opportunity to meet the situation presented by the amended complaint. The cause was fairly tried upon the issues. To at this time hold that allowing the amendment was reversible error, would be to elevate form at the expense of substantial justice.
Upon the merits, the principal issue presented is, whether there were fraudulent representations inducing the contract. As appears from the facts stated, there was a misrepresentation as to the location of the northeast comer. Had the location of this corner been in approximately the center of the river, as represented, there would have been no material deficiency in the acreage. The law is that, where the owner of property undertakes to point out to a prospective purchaser its boundaries or corners, he must do so accurately, and the failure to so do constitutes a fraudulent representation. Hanson v. Tompkins, 2 Wash. 508, 27 Pac. 73; Sears v. Stinson, 3 Wash. 615, 29 Pac. 205; Lawson v. Vernon, 38 Wash. 422, 80 Pac. 559, 107 Am. St. 880; Freeman v. Gloyd, 43 Wash. 607, 86 Pac. 1051; West v. Carter, 54 Wash. 236, 103 Pac. 21; Bradford v. Adams, 73 Wash. 17, 131 Pac. 449. In the case last cited it was said:
“From numerous decisions of this court, it has become the settled doctrine that the vendor, when he undertakes to point out lands or boundaries to a purchaser, must do so correctly.*424 He has no right to make a mistake except under penalty of having the contract rescinded or responding in damages.”
McMurray, therefore, was entitled to the relief claimed, either in the form of an abatement of the purchase price to correspond to the deficiency in the acreage, or a judgment for damages.
Since the misrepresentation as to the location of the northeast corner establishes fraud, it is unnecessary to consider whether the misrepresentation as to the number of acres would also be fraudulent, in view of the fact that the northern boundary was irregular and rendered it impossible for the purchaser to accurately estimate the number of acres without causing the land to be surveyed. Upon this question, no opinion is expressed.
Some claim is made that McMurray was guilty of laches; and, also, that, by permitting the taxes and interest to become delinquent, his rights were forfeited by notice to that effect given after the suit was instituted. Neither of these claims are well founded. After McMurray had caused the land to be surveyed and had thereby discovered the fraud that had been practiced upon him, he entered upon negotiations with the appellant James Cunningham for an adjustment of the matter. These negotiations continued over a considerable period of time. We think the court did not err in resolving these questions against the appellants.
The judgment will be affirmed.
Crow, C. J., Ellis, Gose, and Chadwick, JJ., concur.