71 Wash. 24 | Wash. | 1912
In March, 1910, Adam Thompson, the plaintiff, was negotiating with the owners of a certain building in the city of Seattle for a lease of the upper floors of
Defendant paid rent until the first day of October. After she had drawn a check for the October rent, and had caused it to be sent to plaintiff, notice was served on her by the owner of the building to vacate, and payment of the check was stopped. The same notice was served on plaintiff. Defendant was thereafter evicted, the property covered by the mortgage was set out in the street, and plaintiff took possession of it and began this action to foreclose his chattel mortgage. Defendant answered, setting up fraud and misrepresentation in that she was assured that plaintiff had a lease for the premises and that she could retain the peaceable possession of the premises for the time stipulated in her contract with plaintiff. She asks for a decree rescinding the contract, and for the return of the money paid on the purchase price. She sets up a second cause of action asking for
A jury was called to advise the court. Upon the return of its verdict holding that plaintiff was guilty of misrepresenting the facts concerning the lease to defendant, the court decided that defendant could not rescind, but was bound by the terms of her contract. This ruling was later modified, the court allowing defendant the sum of $600 by way of recoupment. Upon the settlement of the pleadings, and at all times, plaintiff insisted that defendant could not rescind and at the same time recover damages by way of recoupment, and at all seasonable times moved for an election. In this, we think, plaintiff was right. It is an old rule, still adhered to by this court, that the remedies are inconsistent and cannot be concurrently maintained. Houser & Haines Mfg. Co. v. McKay, 53 Wash. 337, 101 Pac. 894, 27 L. R. A. (N. S.) 925. Therefore, in allowing $600 by way of damages, the court erred. In the absence of an election, and with a plea for rescission, the property being in the possession of the plaintiff under foreclosure proceeding, we will assume that defendant relies primarily upon her defense of rescission. The question then is, Can defendant rescind under the facts disclosed?
The court was seemingly of the opinion that, because defendant had some notice in June that the representations made by plaintiff were untrue, and continued to treat the property as her own until October, she is not entitled to rescind, under the authority of Eldridge v. Young America etc. Min. Co., 27 Wash. 297, 67 Pac. 703. That case goes no further than to affirm the general principle that one who is in possession of all the facts must, if he seek rescission on
Plaintiff’s position is that defendant owes him the full measure of her bond, because she should have known he had no lease, notwithstanding his contract to give her a lease and his assurance at all times that he had one. He cannot avail himself of defendant’s mistake when, but for him, she might have protected herself at an earlier date. Rescission is denied where the facts are plain and were understood, or might with reasonable diligence have been understood; not where the facts are disputed or concealed. Diligence or want of diligence in this class of cases cannot be measured arbitrarily. This is the import of the case of Freeman v. Gloyd, 43 Wash. 607, 86 Pac. 1051. We believe the rule to be universal in this country that upon rescission the property must be returned within a reasonable time. The rule is likewise established that what is a reasonable time is a relative
The judgment of the lower court is reversed, with instructions to enter a judgment in favor of defendant, allowing rescission of her contract and such other relief as is consistent with this opinion. Reversed.
Mount, C. J., Gose, Crow, and Parker, JJ., concur.