Bell v. Jovita Heights Co.

• Decision Date: 04 November 1912
• Citation: 127 P. 289,71 Wash. 7
• Parties: BELL v. JOVITA HEIGHTS CO.
• Court: Washington Supreme Court

127 P. 289

71 Wash. 7

BELL v. JOVITA HEIGHTS CO.

Supreme Court of Washington

November 4, 1912

Department 2. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by George A. Bell against the Jovita Heights Company. From a judgment dismissing the action, plaintiff appeals. Reversed and remanded for further proceedings.

Colvin & Nause, of Seattle, for appellant.

Kerr &amp McCord and Hammond & Hammond, all of Seattle, for respondent.

ELLIS J.

The plaintiff prosecutes this appeal from a judgment dismissing his action upon a demurrer to his amended complaint. There are 51 causes of action separately stated in the amended complaint, the first or which alleges:

'(1) That at all times hereinafter mentioned the defendant Jovita Heights Company, was and still is a corporation organized and existing under and by virtue of the laws of the state of Washington.

'(2) That on or about the 20th day of May, 1910, the plaintiff and defendant, by an instrument in writing (which writing is now in the possession of said defendant and ever since has been), made and entered into an agreement, wherein and whereby the defendant agreed to sell and convey to the plaintiff, and the plaintiff was to buy and pay for, as hereinafter set out, an undivided interest in a certain tract of land, being a part of sections twenty-three (23), twenty-six (26), twenty-seven (27), and thirty-five (35), in township twenty-one (21) N., range four (4) E., W. M., all located in King county, Wash. That the agreed price for such undivided interest in said tract of land was to be the sum of one hundred forth ($140) dollars, to be paid as follows, to wit: Ten ($10) dollars upon the making of said agreement, and a further sum of ten ($10) dollars every 30 days thereafter until the complete sum of $140 had been paid. That under said agreement this plaintiff paid to said defendant the sum of one hundred ($100) dollars.

'(3) That said tract of land is platted into lots and blocks, which plat was made by said defendant; said lots ranging in size from one hundred twenty feet by forty feet (120x40) to five (5) acres. That said defendant falsely and fraudulently represented to this plaintiff that each of the lots in said tract of land faced and adjoined leveled or graded street, and that the streets in said tract of land would be lighted with electricity. That said defendant further falsely and fraudulently represented to this plaintiff that there were sidewalks on the streets and in front of the lots in said tract of land, and that sidewalks were being laid therein, and further falsely and fraudulently represented to this plaintiff that there was adequate light and water facilities, and that said property was very valuable for residence purposes and for suburban homes, and that the same was adequately served by an electric railway line running between the cities of Seattle and Tacoma, Wash., and that another electric interurban line between said cities that was partly built would serve said tract of land.

'(4) That this plaintiff resides in Pullman, Wash., which is several hundred miles from the tract of land referred to herein, and it was impossible for this plaintiff to personally examine said tract of land, and the conditions surrounding the same, to verify the representations of said defendant, and this plaintiff therefore relied absolutely upon the said false and fraudulent representations of said defendant, and made and eneted into the agreement hereinbefore referred to, and paid to said defendant under said agreement the sum of one hundred dollars ($100).

'(5) That on or about the 20th day of June, 1911, this plaintiff learned for the first time of the false and fraudulent representations of said defendant, as hereinbefore set out. That he thereupon demanded of said defendant the return of said one hundred ($100) dollars, notifying said defendant that he refused to carry out said contract on the grounds of the false and fraudulent nature of the representations of said defendant.

'(6) That by reason of the facts hereinbefore stated this defendant is indebted to this plaintiff in the sum of one hundred dollars ($100), and said defendant has failed, neglected, and refused to pay the same or any part thereof.'

The other causes of action are set forth in substantially the same terms, except that in each (save the second which is in the same terms as the first) the contract is alleged to have been made with a third party, who, on his discovery of the fraud in June, 1911, refused to further carry out the agreement, and demanded a return of the money paid thereon, which in the different causes is alleged in sums varying from $60 to $140. In each of these it is alleged that the respective contract holder, prior to the commencement of the action, by a written instrument, a copy of which is attached to and made a part of the complaint, assigned and transferred to the plaintiff, for a valuable consideration, his claim of indebtedness by reason of the premises against the defendant. The defendant demurred to the amended complaint upon the grounds (1) that there is a defect of parties plaintiff; (2) that several causes of action are improperly joined; (3) that neither the amended complaint nor any of the 51 causes of action states facts sufficient to constitute a cause of action.

The appellant contends that each of the several separately alleged causes stated a cause of action, because the contracts therein set up were void for uncertainty, in that the instrument did not show the extent of the undivided interest in the whole tract which each of the parties was to receive. It is urged that, while the agreement stood in that condition, the contract could not be specifically enforced, and the transaction could be repudiated by either party, and the money paid thereon recovered. If the amended complaint had sufficiently stated these facts, there could be no question of the correctness of appellant's contention. Scanlon v. Oliver, 42 Minn. 538, 44 N.W. 1031; Buckley v. Wood, 67 N. J. Law, 583, 52 A. 564; Barton v. Spinning, 8 Wash. 458, 36 P. 439.

There was no allegation that the undivided interests were uncertain or incapable of being made certain without resort to further negotiation or agreement. We cannot assume the existence of facts not pleaded in order to declare the contracts void.

The appellant's further contention that the amended complaint stated a cause of action for the recovery of money procured by means of fraud and deceit must be sustained. Each of the causes of action contained appropriate allegations to charge the defendant with liability for false and fraudulent representations as to the subject-matter of the contracts upon the faith of which the various persons in whom the respective rights of action originally vested relied in taking the contracts and paying money thereon. That they had the right to rely upon these representations, under the circumstances pleaded, is well established by the decisions of this court. Lindsay v. Davidson, 57 Wash. 517, 107 P. 514; Wooddy v. Benton Water Co., 54 Wash. 124, 102 P. 1054, 132 Am. St. Rep. 1102; Bailie v. Parker, 56 Wash. 353, 105 P. 834; Best v. Offield, 59 Wash. 466, 110 P. 17, 30 L. R. A. (N. S.) 55; West v. Carter, 54 Wash. 236, 103 P. 21; Jones v. Hawk, 64 Wash. 171, 116 P. 642; McMillen v. Hillman, 66 Wash. 27, 118 P. 903; Kuehl v. Scott,

66 Wash. 318, 119 P. 742; Godfrey v. Olson, 68 Wash. 59, 122 P. 1014.

The respondent contends that the amended complaint was fatally defective, in that it did not state that the alleged false representations were made prior...