26 Wash. 576 | Wash. | 1901
The opinion of the court was delivered by
This action was brought- by appellant to rescind a contract of sale of certain lodging house furniture, which at the time of the sale was located in what was known as the “Palmer House,” in the city of Seattle. The sale also carried with it the good will of the business of said lodging house. It was made by respondents to appellant on the 21st day of November, 1900, the terms being arranged on that day, and on the following day appellant took possession of said furniture and assumed control of said lodging house business. The consideration for the transfer was $2,150. Of said sum, $1,150 cash was paid by appellant, and to secure the payment of the remaining $700 she executed eight promissory notes for $87.50 each, maturing, respectively, at monthly intervals from date. A chattel mortgage upon said furniture was given by appellant to secure the notes. For some months prior to said sale, respondents, as tenants of the owner, had occupied the premises in which said lodging house business was conducted, and were, at the time of
Appellant assigns as error that the court rendered judgment without findings of facts or conclusions of law. The record does not disclose that appellant requested the court to make findings of facts and conclusions of law. In Washington Rock Plaster Co. v. Johnson, 10 Wash. 445 (39 Pac. 115), it was held that the objection that no finding of facts was ever made by the court in an action tried by it cannot be urged on appeal unless there has been a request for a finding, or an objection to the decree for want of one presented in the court below. This record discloses a service of the form of judgment upon appellant’s counsel on the 13th day of February, 1901. The judgment bears date February 15th, but was not filed umtil February 16th. On the 16th of February appellant
It is also assigned as error that the court erred in dismissing appellant’s complaint and in denying the motion for new trial. Without doubt, one of the considerations in appellant’s mind for making the purchase was the expectation that she might continue for a considerable time, at least, as the occupant of said lodging house premises. Such expectation controlled in a measure when the price she agreed to pay was fixed. It is disclosed by the evidence that at the time the purchase was agreed upon, and before it was closed, appellant learned that the agent of the owner was to be found at the Boston Uational Bank in Seattle. During the conversation at that time appellant suggested that respondent John Bushell accompany her to see the agent, that she might learn from him the intentions of the owner with reference to tearing down or removing the building. The real estate agent Eggler, who had taken her to see Bushell, and who was then present, was an acquaintance of long standing, and' she was to some extent relying upon his advice concerning the purchase. When she suggested going to see the agent, either Bushell or Eggler — it is not clear from the evi
The principle here involved was discussed in Griffith v. Strand, 19 Wash. 686 (54 Pac. 613). The court in that case said:
“We come now to a more serious objection, which is urged to the answer. The question which it raises may be thus stated: Do the representations and inducements, which are alleged to have been made and relied upon, relate to matters of fact, upon which the defendants could place reliance, or to matters of opinion and judg-’ ment, concerning which the law required the defendants to judge for themselves? It must not be forgotten that the contracting parties were dealing at- arms’ length. ]STo fiduciary relations existed between them, — nothing to inspire confidence or disarm suspicion, — and there was no imbecility of age, weakness, or disease. The property in question was at hand, and an inspection of it by the defendants could have been made had they insisted upon it. The representations related solely to quantity, quality, and value, the truth or falsity of which could have heen determined by an inspection. Under such circumstances, we think it will not do to hold that a party may successfully complain of his own failure to exercise ordinary care, prudence, and caution, when, by the exercise thereof, the injury of which he complains could not have arisen.”
“If people, having eyes, refuse to open them and look, and, having understanding, refuse to exercise it, they must not complain, when they accept and act upon the representations of other people, if their venture does not prove successful. Written contracts would become too unstable if courts were to annul them on representations of this kind.”
In West Seattle Land & Imp. Co. v. Herren, 16 Wash. 665 (18 Pac. 341), it was held that representations made by the seller of real estate to induce a purchaser to buy, although false, are not ground for rescission of the contract of purchase when there was no fiduciary relation existing between the parties, and when the truth or falsity of the representations could have been readily ascertained by the purchaser by investigation on his part. We think this case falls within the rule approved in the above eases, and that the judgment of'the lower court is in accordance therewith.
The judgment is affirmed.
Reavis, O. J., and Pullerton, Anders, Mount, Dunbar and White, JJ., concur.