Algee v. Hillman Inv. Co.

• Decision Date: 14 March 1942
• Docket Number: 28559.
• Citation: 12 Wn.2d 672,123 P.2d 332
• Parties: ALGEE et ux. v. HILLMAN INV. CO.
• Court: Washington Supreme Court

123 P.2d 332

12 Wn.2d 672

ALGEE et ux. v. HILLMAN INV. CO.

No. 28559.

Supreme Court of Washington

March 14, 1942

Department 2.

Action to rescind or reform a real estate contract by Earl Hix Algee and another against the Hillman Investment Company. From an adverse judgment, defendant appeals.

Affirmed.

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Clarence L. Gere, of Seattle, for appellant.

Charles W. Johnson, Jr., of Seattle, for respondents.

SIMPSON Justice.

Plaintiffs instituted this action to rescind, or in the alternative to reform, a real estate contract entered into between themselves and defendant.

A trial to the court resulted in a judgment rescinding the contract and awarding plaintiff recovery in the sum of $555.66 less $250 for the use of the premises and depreciation. Defendant appealed.

The assigned errors which we deem it necessary to consider are in entering judgment in favor of respondents, in concluding that there was a mistake or constructive fraud chargeable to appellant, and in determining that a rescission was available to respondents.

The facts essential to be stated are these: During the month of November, 1936, respondents called at appellant's office in answer to a newspaper advertisement which read:

'A Beautiful Spot

'On Green River, 1 mile east of Auburn; house and barn; bottom land all cleared; upland has beautiful evergreen trees also a spring; can have gravity flow. Full price $975; $100 down, $12 per mo. Owner, 3207 Eastlake.'

Appellant sent one of its agents with respondents when they examined the property, after which, November 17, 1936, the parties entered into a contract by the terms of which respondents agreed to purchase from appellants four and one-half lots in the C. D. Hillman's Green River Addition in Division No. 1. The purchase price was in the sum of $925, payable one hundred dollars at the time of the signing of the contract and the balance to be paid in the amount of fifty dollars per month.

An additional agreement was made on the same day between respondents and appellant by the terms of which appellant employed respondents to work for it upon a ranch at Paso Robles, California, at a monthly salary of seventy-five dollars. The employment contract provided that respondents were to receive twenty-five dollars of their salary in cash and the balance of fifty dollars would be applied on the real estate contract.

At the time respondents were shown the land, appellant's agent pointed out its boundaries. The land as pointed out by the agent was of a greater acreage than that contained in the contract. After the signing of the contracts, respondents moved to California and worked for appellant for a period of fifty-two days. They did not return to Washington until some time in the autumn of 1939. During the month of April, 1940, they learned for the first time that appellant's agent had misrepresented the extent of the land sold to them by appellant. This action was instituted May 20, 1940.

Appellant argues that the evidence produced by respondents was not sufficient to justify the court in holding that its agent pointed out more land than was contained in the contract and that the evidence did not prove a mistake or constructive fraud on the part of appellant.

This court has many times held that one who indicates to a purchaser that the land sold has a certain area when, as a matter of fact, the deed or contract of purchase contained a less amount, is responsible to the purchaser even though he acted under an honest mistake without any intent to deceive.

In Freeman v. Gloyd, 43 Wash. 607, 86 P. 1051, 1052, this court announced the rule to be: 'Representations involving mere matters of opinion or questions of judgment, as much within the knowledge of one party as the other, cannot be made the basis of an action to rescind or for damages even when not in accord with the truth; but representations as to the boundaries of land are not of that sort. Such representations are regarded as representations of fact, and the owner, if he undertakes to point out the boundaries at all, must point them out correctly, under penalty of responding in damages, or an action of rescission.' (Italics ours.)

We have consistently followed that rule in Shaw v. O'Neill, 45 Wash. 98, 88 P. 111; Bradford v. Adams, 73 Wash. 17, 131 P. 449; Haven v. Anderson, 87 Wash. 234, 151 P. 489; Stevens v. Sweitzer, 117 Wash. 420, 201 P. 764; Pratt v. Thompson, 133 Wash. 218, 233 P. 637; Stanley v. Parsons, 156 Wash. 217, 286 P. 654; and Lou v. Bethany Lutheran Church, 168 Wash. 595, 13 P.2d 20. See, also, 5 Williston, Contracts, Rev.Ed., 1933, 4189, § 1500.

The trial court heard the evidence relative to the actions and representations of appellant's agent at the time the land was shown to respondents. The testimony as related to the court was sufficient to justify it in entering judgment for respondents.

In this case we are to a larger extent than usual, dependent upon the findings of the trial court for the reason that the testimony relative to a map of the property introduced in evidence was very indefinite. Several witnesses used the map while testifying to the representations concerning the...