Carnahan v. Moore

• Decision Date: 28 October 1912
• Court: Washington Supreme Court
• Parties: CARNAHAN v. MOORE.

127 P. 195

70 Wash. 623

CARNAHAN v. MOORE.

Supreme Court of Washington

October 28, 1912

Department 1. Appeal from Superior Court, Pierce County; Ernest M. Card Judge.

Action by Frank M. Carnahan against Paul H. Moore. Judgment for plaintiff, and defendant appeals. Affirmed.

Hayden & Langhorne, of Tacoma, for appellant.

Fletcher & Evans, of Tacoma, for respondent.

CROW J.

Action by Frank M. Carnahan against Paul H. Moore to recover damages arising out of fraud and deceit. From a judgment in plaintiff's favor, defendant has appealed.

The evidence shows that respondent, who came to the city of Tacoma as a stranger in the latter part of the year 1909, had some funds which he desired to invest in real estate; that in the early part of April, 1910, a mutual friend introduced him to one Judson, who with appellant Moore was then engaged in the real estate business; that respondent told Judson he desired an investment, which Judson could recommend, and which could be readily turned at a profit; that Judson repeated this conversation to appellant; that at the time appellant had listed for sale, at $350 per acre, a 40-acre tract of land west of Tacoma, owned by C. S. Barlow and others, the record title to which then stood in the name of the Wilson; that during the latter part of April appellant told Barlow he could not sell the 40-acre tract for more than $9,500; that Barlow on behalf of himself and associates thereupon consented to sell it for that sum, and executed an agreement or option to Elizabeth B. Towle, appellant's mother; that about the same time appellant directed respondent's attention to the tract, telling him it was a good investment, that it could be bought for $350 per acre but that the owners would sell no part of it unless they could sell it all; that he had found a railroad man who would take the south 20 acres; that, if respondent would join appellant, they could purchase the north 20 acres at $350 per acre, and hold it together for sale at a profit; that on May 4, 1910, respondent accepted appellant's offer, paid him $2,250, and assumed $1,250 of a mortgage on the land; that when this payment was made, appellant told respondent he desired to hold the title to his share in the name of his mother, Elizabeth B. Towle, and that it would be necessary to obtain her consent before closing the deal; that on May 7, 1910, appellant procured a conveyance of the 40-acre tract to his mother, Elizabeth B. Towle; that he paid Barlow and associates only $8,353.05; that for a stated consideration of $10 he on May 10, 1910, caused Mrs. Towle to convey the land to him; that on the same day he conveyed an undivided half of the north 20 acres to respondent; that later he conveyed the south 20 acres to one Daub, the railroad man whom he had mentioned, and that, to induce Daub to make the investment in the south tract at $350 per acre, appellant made the same representations he had made to respondent. The decrease in the price at which appellant purchased the 40 acres from $9,500 to $8,353.05 was procured by appellant on account of a right of way, and platted streets which occupied a portion of the land. The contract of sale from Barlow and associates and later a deed from Wilson were procured by appellant in the name of Elizabeth B. Towle, and a contract was given to respondent by appellant as her agent and in her name. Respondent contends, and the trial court found, that the use of the name of Mrs. Towle was a subterfuge to conceal the fact that appellant was himself purchasing the land from Barlow and associates, and that he was paying less than $350 per acre. The controlling question on this appeal is whether this finding should be sustained.

Upon reading the evidence, we conclude that Mrs. Towle had no interest in the transaction; that the purchase from Barlow...