92 Wash. 73 | Wash. | 1916
Action to rescind an exchange of real estate and for damages. In the fall of 1913, all of the parties resided in Seattle, but were not acquainted. Plaintiffs owned two acres of land within the limits of that city which they desired to exchange for a farm. Defendant Rebecca C. Maxey owned, as her separate property, a large tract of land near Prairie City, in Grant county, Oregon, which she had listed for sale with one Stewart, a member of a firm of real estate brokers in Seattle. Plaintiffs learned of this through another real estate agent who took them to Stewart’s office in the hope of making an exchange. Pursuant to an appointment then made, plaintiffs met Mrs. Maxey in Stewart’s office in November or December, 1913, and it was finally agreed that if, after examination of the respective lands, both parties were satisfied, plaintiffs should select and take one hundred and sixty acres of defendant’s land at a valuation of $16,000 in exchange for their two acres at a valuation of $10,000 and their promissory note for $6,000 to be secured by a mortgage upon the land taken by them. Plaintiffs’ land was subject to a mortgage for $1,500, to offset which they assigned to defendant a note for a like amount secured by a mortgage on certain land in Lewis county, Washington.
Defendant soon after examined the two acres and was satisfied with it, but positively declined to make the trade unless Meyer would go to Oregon, examine the land, and investigate conditions for himself. John Meyer, Mrs. Maxey and the agent Stewart all so testified. Accordingly, in December, 1913, the exact date not appearing, Meyer and Stewart went to Prairie City, Oregon, arriving there about
Meyer and Stewart returned to Seattle, and neither defendant nor Stewart made any further overtures in the matter. Plaintiffs were not heard from until the expiration of about ten days, when they appeared at Stewart’s office and announced themselves as ready to close the deal on the terms outlined. Stewart then drew up a contract between the parties embodying those terms, and Meyer took it to his then attorney, Henry W. Lung, of Seattle, for examination, together with defendant’s permit from the Oregon authorities for the appropriation of water for the land. Lung expressed himself as not satisfied with the agreement, in that it did not mention the water right, and thereupon redrew the contract in accordance with plaintiffs’ request. Defendant at the same time delivered to Lung the abstract of title to the Oregon land for examination. As a result of his examination of the title and water permit, deeds were exchanged and the deal was closed. The foregoing facts are not disputed.
In March, 1914, plaintiff and his family moved to the Oregon land, and now claims that he then found that the land was in many particulars different from what it had
The misrepresentations charged as inducing the exchange were: (1) that the land had a water right pertaining to it, whereas it had none; (2) that Mrs. Maxey represented that she had spent $2,200 in ditches to irrigate the land; (3) that the land was rich valley and bottom land; (4) that it was worth $100 per acre; (5) that it would produce sixty bushels of wheat to the acre. The testimony of respondents and their two sons tended to support all of these charges. As to the water right, Mrs. Maxey testified that she represented only that she had a water permit from the state of Oregon and delivered the permit to respondents and their attorney in evidence of that fact; that she made no representations
A careful consideration of the entire record convinces us that the evidence strongly preponderates in favor of appellants. It is manifest that any sort of an examination of the land must have disclosed the fact that neither the sum of $2,200, nor any other large sum, had been expended in ditches on this particular tract, and must have disclosed the fact that it was not bottom, but bench, land. As to its value, it is manifest from the evidence that both parties largely inflated the values of their respective lands for trading purposes and that each relied upon his own judgment as to the actual values. As to what the land would produce, the respondent himself testified that, when he visited the land in December, 1913, he inquired from the adjoining owner about the soil, about the climate, about the crops on similar lands in that vicinity, in short, that he asked him about every question he could think of. The record is long and we cannot further discuss the evidence in detail. There are, however, two controlling facts which are undisputed and which we find determinative of this case.
Touching the water right, it is true that appellant represented that a ditch had been dug carrying water to the land. In this she was confessedly mistaken, but it is also undisputed that, as soon as she discovered that fact, she went to the land, secured an extension of time for the ap
Appellant refused to make the trade unless and until the respondent had examined the land and satisfied himself as to its character and quality. Respondent entered upon an examination and expressed himself as fully satisfied with the land. He had every opportunity to make as full an examination as he desired, and though he now says the land was then so wet that he could not make a thorough examination, the fact remains that he clearly acted upon his own judgment and asked for no further time to investigate. Even assuming that every representation charged by respondents had been made by appellant, it is manifest that the case falls within the rule announced by Pomeroy and reiterated in many of our decisions to the effect that, where the party 'charging misrepresentation institutes inquiry for himself, has recourse to the proper means of obtaining information and actually learns the real facts, or could have done so by availing himself of the means of information at hand, he cannot claim that he did not learn the truth and was misled by the representations. 2 Pomeroy, Equity Jurisprudence (2d ed.), § 893; Wilson v. Mills, 91 Wash. 71, 157 Pac. 467; Stewart v. Larkin, 74 Wash. 681, 134 Pac. 186, L. R. A. 1916B. 1069; Conta v. Corgiat, 74 Wash. 28, 132 Pac. 746; Shores v. Hutchinson, 69 Wash. 329, 125 Pac. 142; Van Horn v. O’Connor, 42 Wash. 513, 85 Pac. 260.
The judgment is reversed and the cause is remanded with direction to dismiss the action.