97 Wash. 166 | Wash. | 1917
The plaintiffs, Sowles and wife, commenced this action in the superior court for Thurston county, seeking recovery upon two promissory notes and the foreclosure of a chattel mortgage securing the same, executed by the defendants Fleetwood and wife. The notes evidence a debt for a balance of $1,500 due upon the purchase price of the furniture and good will of the Willard Hotel, a rooming house in Olympia which had been purchased by the defendants from the plaintiffs. The defendants admit the purchase of the business and the execution of the notes and mortgage for the balance of the purchase price, but defend against re
For several years prior to January, 1915, appellants owned the furniture and good will of the Willard Hotel, occupying a building under a lease. While the property was evidently community property, the business was under the management and control of Mrs. Sowles. Early in January of that year, negotiations were commenced between respondents and Mrs. Sowles looking to the purchase of the business by respondents. Respondents, up to that time, had been farmers and were wholly inexperienced in the hotel business, of which fact Mrs. Sowles was fully aware at the time she was dealing with them. Mrs. Sowles asked $2,500 for the business. Respondents, after looking at the rooms and furniture, expressed themselves as considering the price too high. This belief on their part was manifestly because of their view of the value of the furniture. Mrs. Sowles told them that the business was worth all that she was asking for it and that she had two offers of $2,000 for the business, one of which she told them was a standing offer, naming the persons who she claimed made; such offers. She also told them that the business had been, and was then, making $200 per month clear. Relying upon these representations, respondents consummated the purchase on January 16, paying Mrs. Sowles $1,000 in cash and executing the notes and mortgage above mentioned for the balance of $1,500.
The evidence is not free from conflict, but we think it fully warrants the conclusion that these statements were made by Mrs. Sowles, that they were false, that they were made with
Some contention is made in appellants’ behalf that respondents should be held to have affirmed the contract and waived any remedy they might have as against appellants, because of lapse of time and their continuance in possession of the business. We have seen that the sale was consummated on
“Nor does an affirmance of the contract after discovery of the fraud extinguish the right to an action for damages on account of the fraud. An affirmance bars only the right to rescind. All other remedies remain unimpaired.”
In Samson v. Beale, 27 Wash. 557, 68 Pac. 180, Judge Hadley, speaking for the court, said:
“Ordinarily it is the injured party who-seeks a rescission. He may pursue either the equitable remedy of rescission, and offer to place the other party m statu quo by tendering back the benefits of the contract, or he may retain the benefits of the contract and bring his action at law for his damages.”
We conclude the judgment must be affirmed. It is so ordered.
Ellis, C. J., Mount, Holcomb, and Fullerton, JJ., concur.