No. 5849 | Wash. | Apr 5, 1906
— This action was brought by appellants, to recover damages from respondents on account of alleged false and fraudulent representations in regard to- the sale of certain real estates These representations are alleged to have been made by respondents O’Connor and Leei, and relied upon by appellants. Hpon issues of fact made by the pleadings, the cause came on for trial toi the court and a jury. After the plaintiff F. M. Van Horn had given his testimony, the trial court took the case from the jury, upon motion of the respondents. This appeal is from the judgment of dismissal.
On June 10, 1904, Mr. O’Connor and Mr. Van Horn again went to examine the laud. There was a fence around the whole section, hut no dividing fence. They drove along the north line to- about the center of the section, and then followed the supposed half section line south to- where Mr. O’Connor said the comer ought to be. They did not go- as far as the south fence on that side of the section because Mr. O’Conner said he thought the fence was beyond tbe line, and was built through the rocks for convenience in fencing, and that the bad land which was between them and the fence was not upon the half section. They did not find the comer of the half section. Mr. O’Connor thereupon said it must have been moved or taken away. After looking around at the land, they returned to Downs. On the way back Mr. O’Connor again said that there were two hundred and forty, or two hundred and forty-one acres of land under cultivation,
After he had purchased the land, Mr. Van Horn discovered that the fence on the south side of the half section was located upon the south line. The court refused to receive evidence as to how many acres of the land were tillable. On cross-examination, Mr. Van Horn stated that he had never met Mr. O’Connor until about the 1st day of June; 1904; that he was desirous of trading Spokane property for farm lands, and went to see Mr. O’Connor for that purpose, and had no other dealings or relations with him; that he had never met Mr. Lee until the Ith of June, 1904, and had no other dealings with him. Hpon the facts as stated above; the lower court was of the opinion, that there were no confidential relations existing between Mr. O’Connor or Mr. Lee and Mr. Van Horn; that the representations made were expressions of opinion about facts which were as open and obvious to the appellant as to the respondents, and that appellant had an opportunity to obtain the facts about which representations were made, and for that reason dismissed the action.
It is clear from appellant H. M. Van Horn’s evidence that he obtained all the land which was shown him, and some which was stated did not go. with the half section purchased. But the important and controlling question in the case is whether’, after examining the land, appellant may complain because there is not as much tillable land as was represented by the respondents. This court has frequently held that, where representations are made as a matter of opinion, there is no liability for misrepresentations, where the parties are
But, where the representations made are of material facts within the knowledge of the vendor, and entirely without the knowledge of the vendee, and where the circumstances are such as reasonably call for a reliance thereon, the rule is that the vendee may rely upon the representations of the vendor. Daniel v. Glidden, supra; Lawson v. Vernon, supra; Baker v. Bicknell, 14 Wash. 29" court="Wash." date_filed="1896-02-19" href="https://app.midpage.ai/document/baker-v-bicknell-4723228?utm_source=webapp" opinion_id="4723228">14 Wash. 29, 44 Pac. 107; Sears v. Stinson, 3 Wash. 615" court="Wash." date_filed="1892-01-25" href="https://app.midpage.ai/document/sears-v-stinson-4725524?utm_source=webapp" opinion_id="4725524">3 Wash. 615, 29 Pac. 205; Hanson v. Tompkins, 2 Wash. 508, 27 Pac. 73. In the last named case this court held that, where the vendor represented that a tract of land contained thirty-six and one-half acres, when as a matter of fact it contained only twenty-six and one-half acres, the vendor was guilty of deceit, where he did not know but believed the representations were true. The same rule was followed in Sears v. Stinson, supra.
These cases are relied upon by the appellants, but it does not appear in either of them that the vendee to- whom the land was sold had an opportunity to make an examination, or that he did so. On the other hand, it appears that the, vendee relied wholly upon the representations of the vendor; and it further appears in Hanson v. Tompkins that it was the intention of the parties to convey forty acres of land, and that a less number of acres was 'actually conveyed. The case of Baker v. Bicknell, supra, seems to be squarely in point, and decisive of the case before us. According to the appellant’s evidence, which must be taken as true on this appeal, both Mr. Lee and Mr. O’Connor represented that there were two hundred and forty acres of land in cultivation upon the half section. They stated at the same time that there were twenty-five or thirty acres more that could be put into cultivation, and not to exceed fifty or sixty acres of waste land out of the three hundred and twenty acres. These two latter
The judgment is therefore affirmed.
Dunbar, Crow, Hadley, Rudkin, Root, and Fullerton, JL, concur.