101 Wash. 404 | Wash. | 1918
This action was brought by the appellant, Mark J. Sevier, against the respondent, Gr. W. Hopkins, for damages of $437. The controversy arose out of a verbal contract for the sale of hay, and the facts are as follows:
In the latter part of February, 1915, the parties met in Toppenish, Washington, and respondent verbally offered to sell to the appellant some sixty-five to seventy tons of first-class alfalfa hay at $6.50 per ton, and $1.25 per ton additional for chopping the hay.
Appellant brought his action upon the theory that' respondent had misrepresented the hay and that a
At the conclusion of the trial, the respective parties moved for a directed verdict. The court denied plaintiff’s motion, took the case from the jury, and dismissed the action.
The trial court was of the opinion that the contract was a severable one and that the plaintiff tried it on that theory. The record does not show it, and the plaintiff claims otherwise in his brief.
Appellant assigns as error failure of the court to direct a verdict for the plaintiff at the conclusion of all the testimony. The evidence shows that the hay was to be in first-class condition, finely cut, and that the appellant never saw the hay until it reached Portland, from where his order of acceptance was sent by telegram before the hay was chopped and shipped. Respondent was in entire charge of the hay until after chopping. If all the hay had been in first-class condition before chopping, or if the wet hay and show had been separated from the good hay, the condition of which the respondent had knowledge, the hay would not have spoiled in transit.
“It is generally held in this country that the intentional nondisclosure of a latent defect by the seller, when he knows that it is unknown to the buyer, is fraudulent.” 35 Cyc. 69.
“Any device, however, used by the seller to conceal defects or to induce the buyer to omit inquiry or examination is as much a fraud as active concealment.” 35 Cyc. 69.
“According to the weight of authority the buyer cannot, in the absence of fraud or an agreement giving
It seems that there is some question as to whether the contract herein is severable. The decision of this point is unnecessary, as the appellant is not asking for a rescission but has brought his action for damages caused by respondent’s misrepresentation and fraud.
This brings us to the point whether the appellant’s evidence will sustain a judgment. Both parties having asked for a directed verdict and reserving no question of fact to be submitted to the jury, they admitted that the evidence was free from conflict. Lindquist v. Northwestern Port Huron Co., 22 S. D. 298, 117 N. W. 365; Knox v. Fuller, 23 Wash. 34, 62 Pac. 131.
The Knox case was followed in the ease of Easterly v. Mills, 54 Wash. 356, 103 Pac. 475, 28 L. R. A. (N. S.) 952, where the court said:
“When the two motions were interposed, there being no conflict in the evidence as to any material fact, the parties in effect waived a verdict of the jury, and submitted the cause for determination by the trial judge, who was then authorized to enter such judgment as the evidence warranted, and we will on this appeal dispose of the case on the same theory.”
We cannot sustain the contention of respondent that the draymen had authority to accept, and did accept, delivery of the wet hay and snow as agent of appellant, thus constituting acceptance of the hay as delivered, by the purchaser. The authority of the draymen was simply to cart the hay turned over tó them by the respondent to the cars. No one had been given such authority by appellant to act as his agent either to
A wrong was' committed in this case by the respondent’s attempting to palm off upon appellant the wet unmerchantable hay, thus causing the whole lot to spoil, to appellant’s damage. As to who committed this wrong, appellant had no knowledge until after payment and acceptance of the hay. To allow respondent to profit by his wrong would be unjust and unconscionable. The appellant was overreached and defrauded and is entitled to recover his entire damage therefor. This is indisputably shown to be the sum of $437.
Reversed and remanded with instructions to enter judgment for appellant for the sum of $437, with his costs and legal interest from date of trial.
Ellis, C. J., Fullerton, Mount, and Chadwick, JJ., concur.