Bliss v. Clebanck

• Decision Date: 01 September 1925
• Docket Number: 19045.
• Citation: 136 Wash. 32,238 P. 979
• Parties: BLISS v. CLEBANCK.
• Court: Washington Supreme Court

238 P. 979

136 Wash. 32

BLISS v. CLEBANCK.

No. 19045.

Supreme Court of Washington

September 1, 1925

Department 2.

Appeal from Superior Court, King County; Truax, Judge.

Action by Margaret Bliss against Anna J. Clebanck. From a judgment for plaintiff, defendant appeals. Affirmed.

Mackintosh J., dissenting.

Philip Tworoger, of Seattle, for appellant.

Ballard & Houghton and Harry Ellsworth Foster, all of Seattle, for respondent.

FULLERTON J.

On October 23, 1923, the appellant, Anna J. Clebanck, and the respondent, Margaret Bliss, entered into a contract whereby the appellant agreed to sell and the respondent agreed to purchase a lot in the city of Seattle upon which there was an apartment house together with certain of the furnishings of the apartment house. The contract price agreed to be paid for the property was $51,000. Of this sum $5,500 was paid. By the terms of the contract the respondent was to be let into possession of the property on November 1, 1923. Prior to the last-mentioned date, however, she conceived that she had been deceived as to the value of the property because of false representations concerning it made by the appellant as an inducement to its purchase. She thereupon demanded a rescission of the contract, and demanded a return of the purchase money, tendering a quitclaim deed to the property and a cancellation of the contract. The appellant refused to recognize the respondent's right to rescind, and refused to return the purchase money, whereupon the present action was instituted to enforce a rescission and recovery. The cause was tried to the court sitting without a jury, and resulted in a decree rescinding the contract, and a judgment for the purchase money paid.

The matters set up in the complaint and relied upon at the trial were (1) misrepresentations as to the number of apartments that were vacant in the apartment house at the time of the contract, and misrepresentations as to the length of time the apartments conceded to be vacant had been so vacant, (2) misrepresentations as to the amount and constancy of business of the apartment house, (3) misrepresentations as to the race of the people residing in the vicinity of the apartment house, and (4) misrepresentations as to the amounts for which the several apartments in the house were renting.

It is the appellant's first contention that the evidence does not sustain these allegations, but we find in the record substantial evidence in support of each of them. There was evidence on the other side, it is true, but the trial judge who had the witnesses before him found that the evidence preponderated in favor of the respondent, and our examination of it does not convince us that he reached an incorrect result.

The representations were of material facts, were within the knowledge of the vendor, were without the knowledge of the vendee, and were of such a nature that their truth or falsity could not be readily ascertained by the vendee. We have repeatedly held in such instances that a vendee is not guilty of such want of ordinary prudence and diligence as to forbid a recovery even if he made no independent investigation. On the contrary, we have held that ordinary prudence and diligence do not require a person to test the truth of representations made to him by another as of his own knowledge, and with the intent that they shall be acted upon if the facts are peculiarly within the knowledge or means of knowledge of the person making...