98 Wash. 134 | Wash. | 1917
This action was brought to recover upon three promissory notes for $1,083 each, with interest and costs. These notes were dated April 7, 1907, payable respectively in one, two, and three years after date. The complaint is in the ordinary form, alleging that the notes were past due, nonpayment, and praying for the full amount of the notes, with interest, attorney’s fees, and costs. In answer to the complaint, the defendants admitted the execution and delivery of the notes. An affirmative defense was pleaded to the effect that the notes were given as the consideration for the sale of a certain stallion by the plaintiffs to the defendants ; that this stallion was offered for sale to the defendants by one Gray, acting as agent for the plaintiffs; that the stallion was exhibited to the defendants by Gray, who represented the horse to be a pure bred Perdieron imported from France and registered in that country as a pure bred horse under the name of Eloi, with the number 44,458; that the defendants relied upon the representations so made; that these representations were false and were known by Gray to be false; that the horse exhibited and delivered to the defendants was an entirely different animal and was not a pure bred Percheron, but was a grade horse registered in a disreputable society under the name of Julian, with a different' number; that the horse was afflicted with a disease which made him unfit for the purposes for which he was purchased; that, as soon as the defendants discovered that the animal was misrepresented and that they had been defrauded, they disaffirmed the sale, notified the plaintiffs that they would not be bound thereby, and tendered the stallion back
It is argued by the appellants that the respondents were not entitled to maintain the action because they were a partnership doing business in this state and that a certificate of partnership was not filed as required by law. A certificate was filed before the trial, which complied with the statute. If we concede, however, that the certificate was not filed in time, it does not appear from the record that the respondents were doing business in this state at the time the action was brought. The record shows that the respondents were in business in Iowa at that time, and there is no evidence in the record that, at the time the action was brought, they were doing business in this state. The statute, at Rem. Code, § 8369, provides that no person or persons shall conduct or transact business in the state under an assumed name unless such person or persons shall file a certificate in the office of the county clerk of the county or counties in which said business is to be conducted, which certificate shall set forth the name under which said business is to be conducted and the true or real name or names of the party or parties conducting the same. This court has held in a number of cases that the mere bringing of an action does not constitute doing business. Lilly-Brackett Co. v. Sonnemann, 50 Wash. 487, 97 Pac. 505; Smith & Co. v. Dickinson, 81 Wash. 465, 142 Pac. 1133.
It is next argued that the court erred in refusing an offer of proof to the effect that a Mr. Gray, who sold the horse to
It is next argued that the evidence required a finding by the trial court to the effect that the appellants had rescinded the contract upon discovering that the horse they purchased was a different horse from the one represented. The record here clearly shows that the name and number given to the horse was a mistake. Instead of the name of the horse being Eloi, number 44,458, his name was Julian, register number 3,707. After discovering this fact, and -the fact that the horse Julian was not a pure bred Percheron, and other defects, the appellants caused a letter to be written on the 24th day of January, 1908, in which they stated that, because the respondents had delivered another horse than the one represented, the appellants had been damaged in the sum of $1,250, and that, unless the respondents would allow this damage and deduct it from the purchase price of the horse, they would hold the horse subject to the respondents’
“Where a party desires to rescind upon the ground of mistake or fraud, he must, upon the discovery of the facts, at once announce his purpose, and adhere to it. If he be silent, and continue to treat the property as his own, he will be held to have waived the objection, and will be conclusively bound by the contract, as if the mistake or fraud had not occurred. He is not permitted to play fast and loose. Delay and vacillation are fatal to the right which had before subsisted.”
See, also, Aurora Land Co. v. Keevan, 67 Wash. 305, 121 Pac. 469; Dickinson Fire & Pressed Brick Co. v. Crowe & Co., 63 Wash. 550, 115 Pac. 1087.
In the latter case we said:
“A failure to give notice, or to offer to return the property within a reasonable time after discovering the defects, operates as a waiver of the right to rescind, and leaves the purchaser only the right to recover or offset damages to the extent of the diminished value of the article.”
In this case the diminished value of the property was stated, after notice of the facts, to be $1,250. The trial court allowed $1,200 of this amount in reduction of the amount sued for. The respondents have not appealed and are, therefore, bound to the same extent as though they had sold the horse to the appellants.
It is argued by the appellants that the findings of fact and conclusions of law do not support the judgment, for the
We find no error in the record, and the judgment is therefore affirmed'.
Ellis, C. J., Holcomb, Fullerton, and Parker, JJ., concur.