Bariel v. Tuinstra

• Decision Date: 12 November 1954
• Docket Number: No. 32933,32933
• Citation: 45 Wn.2d 513,276 P.2d 569
• Parties: Russell J. BARIEL, Appellant, v. Gerrit TUINSTRA, Respondent.
• Court: Washington Supreme Court

Page 513

45 Wn.2d 513

276 P.2d 569

Russell J. BARIEL, Appellant, v. Gerrit TUINSTRA, Respondent.

No. 32933.

Supreme Court of Washington, Department 2.

Nov. 12, 1954.

Samuel P. Hale, Snohomish, R. V. Welts, Mount Vernon, for appellant.

Jesse Simmons, Carnation, Fred C. Campbell, Seattle, for respondent.

DONWORTH, Justice.

Plaintiff appeals from a judgment dismissing his action for rescission of a contract by which he purchased from defendant one hundred head of cattle and certain farm machinery.

In his complaint plaintiff sought rescission on grounds that defendant fraudulently represented that the cows were free from Bang's disease whereas the herd contained a number of Bang's 'reactors' (animals infected with the disease) and some 'suspects,' (animals possibly infected.)

Defendant's answer denied that he represented the cows to be free from the disease and alleged that he voluntarily informed plaintiff that the herd had been tested and four 'reactors' found in the test were still in the herd.

The trial court found that defendant had defrauded plaintiff by concealing from him the fact that the herd contained four Bang's disease 'reactors' and that the herd was quarantined by the state department of agriculture at the time of the sale. The court ruled, however, that plaintiff could not have the sale rescinded for these four reasons: (1) that plaintiff could have learned by inquiry at the department of agriculture at the state capitol that the cows had been blood tested and that some of them were 'reactors'; (2) that plaintiff should have demanded sooner that the sale be rescinded; (3) that plaintiff did not make a specific tender back to defendant of the farm machinery covered by the contract when plaintiff sought to rescind the sale, and (4) that the contract for the sale of the cattle and farm machinery and another contract (simultaneously agreed upon by the parties) by which plaintiff agreed to purchase defendant's dairy farm constituted one indivisible contract, and that plaintiff was not entitled to elect to rescind the contract for the sale of the cattle and machinery while retaining the benefit of the contract for the sale of the real property.

From the resulting judgment of dismissal plaintiff appeals.

Except as to the making of the alleged misrepresentations, the facts in this case are not seriously in dispute. There is little difference between appellant's version of the facts and the findings of fact entered by the trial court (although he assigns as error the making of three findings) but appellant principally complains that the trial court erred in drawing certain legal conclusions from the facts. The basic facts are these:

Prior to the transaction involved in this case, respondent owned and operated a one hundred sixty acre dairy farm near Carnation, Washington, on which he had sixty-seven milk cows and thirty-three head of young stock. In January, 1953, a state agricultural department veterinarian tested respondent's cows and discovered that eight of them (called 'reactors') were infected with Bang's disease and twenty more were 'suspects.' Respondent could have disposed of the eight reactors by slaughtering them or selling them for slaughter within fifteen days, in which event he would have been reimbursed by the state for a part of their value. He disposed of only four of the infected cows, keeping the other four in the herd.

Because respondent had not disposed of all the reactors within fifteen days, the state placed an automatic quarantine on the herd, notifying him that he could not sell any of the cows except for slaughter and could not sell any milk from the herd except to a dairy which would pasteurize the milk.

In March appellant heard that respondent wanted to sell his cattle and lease his dairy farm. Appellant began to negotiate with respondent about leasing the farm and buying the livestock. Respondent then decided to sell both the farm and the cattle.

Appellant had operated a dairy farm approximately twenty years earlier but had had no recent experience in that business. He inspected respondent's farm and cattle several times. The herd was composed of Guernsey, Holstein, and Jersey cows. Appellant told respondent that he (appellant) preferred Holsteins and that he intended to sell the Guernseys and Jerseys from time to time and replace them with Holsteins. Respondent did not inform appellant that the herd was quarantined so it would be impossible for him to sell the Guernseys and Jerseys as dairy cows, though they could be sold for slaughter (at a considerable loss).

On April 16, 1953, appellant and his wife and daughter went to respondent's farm to negotiate for the purchase of the farm and the cattle and farm machinery. Prior to reaching any agreement, appellant asked if respondent had a health certificate on the cows. Respondent replied that the herd had been blood tested recently and the test showed the herd to be free from Bang's disease, but that there were four 'suspects' in the herd. (Respondent testified that he said there were four 'reactors' in the herd but the trial court found that testimony to be false.)

Respondent and appellant agreed upon and dictated to appellant's wife the terms of a contract for the sale of the real estate by respondent to appellant for $65,000 and the terms of a contract for the sale of the personal property (cattle and farm machinery and equipment) for $27,000. Appellant's wife wrote out in longhand the terms of the contracts of sale in one document, which provided exactly how much should be paid each month on the real estate contract and on the personal property contract until the personal property contract was paid in full, after which payments would be $450 a month on the real estate contract until that was paid off. This agreement (which was signed by the parties) provided for the payment of 4 1/2 per cent interest on the unpaid balance of the real estate contract and five per cent interest on the unpaid balance of the personal property contract.

On April 20, 1953, appellant and respondent entered into an executory contract of sale of the dairy farm real estate for $65,000. The contract provided that title to the real estate would not pass to appellant until the executory contract had been paid off in full. The contract also provided that payments due on the contract should be secured by an assignment by appellant to respondent of moneys to become due each month from the Golden Rule Dairy for milk purchased by it and produced from the herd to be maintained on the farm.

On April 22, 1953, appellant purchased from respondent the one hundred head of cattle on the farm and certain items of farm machinery and equipment, including a milking machine. Appellant paid $8,000 down on the purchase price of the personal property and gave his promissory note for $19,000 for the balance. Respondent conveyed title to the cattle and other personal property to appellant by bill of sale and appellant gave back to respondent a chattel mortgage on the property thus conveyed to secure payment of the $19,000 note.

The Golden Rule Dairy accepted an assignment by appellant directing it to pay to respondent certain sums out of the amounts to become due appellant each month for milk produced by the dairy herd and purchased by it. The assignment provided that certain specified sums should be applied each month upon the real estate contract and that certain other specified sums should be applied in payment of the note given in the purchase of the personal property.

Appellant and his wife took possession of the farm and the personal property on May 15, 1953. On Saturday, July 18, 1953, appellant received from the state department of agriculture a notice of the reissue of the quarantine on the herd because of the presence of cows infected with Bang's disease. On the following Monday appellant went to Olympia and looked up the records on the herd at the office of the state department of agriculture. He discovered that the herd had been quarantined at the time he purchased it in April.

A few days later respondent was driving along a road beside the farm and stopped to talk to appellant, who asked him why he had sold him a quarantined herd of cattle. Respondent did not answer but said he did not want to have any trouble and that they should 'stay out of court.' Respondent asked appellant, 'What do you want me to do? Do you want me to clean up this herd, or do you want your money back?'

Appellant, who intended to talk to a veterinarian about the seriousness of Bang's disease before deciding what to do, asked respondent when he would be coming back again and respondent stated that he would be back in five or six days. There is a dispute in the evidence over how long it was before respondent returned, appellant testifying it was two or three weeks and respondent that he returned in a week. We think it is immaterial which version is correct. (The trial court made no definite finding on the issue.)

Before respondent returned appellant had conferred with a veterinarian, who told him that Bang's disease is highly contagious among cows and can infect human beings (and especially those who work with infected animals) with undulant fever, a serious illness. See Nelson v. West Coast Dairy Co., 5 Wash.2d 284, 105 P.2d 76, 130 A.L.R. 606, and Streeter v. Vaughan, 39 Wash.2d 225, 235 P.2d 193.

It is undisputed that on the second occasion when respondent and appellant met, respondent asked him what he had decided to do and he answered: 'I want my money back.'

Respondent immediately replied: 'I'm not going to give it to you.'

There were some negotiations between the parties and both testified that respondent did offer to 'make good' for two of the four 'reactor' cows, but appellant rejected the offer. However, appellant did not make a specific offer to return the cattle and all of the farm machinery and equipment included in the personal property sale...