Christensen v. Koch

• Decision Date: 14 May 1915
• Docket Number: 12252.
• Citation: 85 Wash. 472,148 P. 585
• Parties: CHRISTENSEN et ux. v. KOCH et ux.
• Court: Washington Supreme Court

148 P. 585

85 Wash. 472

CHRISTENSEN et ux. v. KOCH et ux.

No. 12252.

Supreme Court of Washington

May 14, 1915

Department 2. Appeal from Superior Court, Snohomish County; G. C Alston, Judge.

Action by Nels Christensen and wife against Frederick A. Koch and wife. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

Willett & Oleson, of Seattle, for appellants.

MORRIS C.J.

Action to rescind an exchange of real estate. Appeal from a judgment of dismissal.

Appellant was the owner of two lots at Everett, upon which there was a small house and a mortgage of $550. Respondent was the owner of a farm of 160 acres in Adams county, upon which there was a like incumbrance of $550. An exchange of these properties was arranged; appellant paying in addition $300 in cash, and giving respondent a note for $700. Rescission is asked for upon the ground of false representations made by respondent as to the character of the Adams county land. These representations were that the land was good wheat land; that 110 acres had been seeded to wheat in the fall of 1912, and 25 acres to rye; that the land produced 20 to 30 bushels to the acre; that there was a good four-room house on the ranch, and a barn or shed for horses. The lower court found that the appellant's Everett property was worth $1,500; that the Adams county land was worth $2,000; that respondent substantially represented the character of the Adams county land, and the buildings thereon, and that before the exchange was completed advised appellant to make a personal examination of the Adams county land, offering through himself or agent to loan appellant the necessary money for the trip, and that if the land was found to be other than as represented, to pay all expenses of the trip. Based upon this last finding, a conclusion of law was made that appellant was reckless in not availing himself of the offer.

These findings, if supported by the evidence, would support the judgment under the rule so often announced that findings of the lower court made upon conflicting evidence will not be disturbed unless from an examination of the record we can say the preponderance of the evidence is against the findings. Having read the record, we have reached the conclusion that the preponderance of the evidence does not sustain the findings, but supports the contention of appellant. This calls for a reversal of the judgment. Borde v Kingsley, 76 Wash. 613, 136 P. 1172.

Upon the question of the value of the respective properties appellant alleged in the complaint that the Everett property was of the value of $2,500, and upon his examination as a witness he so testified. Respondent in his answer denied the Everett property 'was worth the sum of $2,500 or to exceed $2,000.' He testified that the value did not exceed $1,500. This was the only testimony upon this point. The value should have been found to be $2,000 under the admission of the pleading. Appellant alleged the Adams county land was worth $900. Respondent alleged it to be worth $4,000. The only evidence in the record as to the value of the Adams county land was from a witness who owned adjoining lands and was familiar with the property as farming lands. He testified that 30 acres was white clay, 30 acres was covered with scab rock, and that these 60 acres were valueless for farming purposes; that the remainder of the land was worth $7 per acre. This would make a valuation not to exceed $1,120, giving the entire 160 acres the same valuation of $7 per acre. The finding of the lower court was that the Adams county land was not worth the amount paid by appellant, but was worth $2,000. There is no evidence of a valuation of $2,000 in the record nor any evidence of any other valuation except $7 per acre as stated. Respondent testified that he had been offered a loan of $1,000, and in making up this finding of value the court recites this fact and then fixes the value at $2,000. Assuming that respondent was offered a loan of $1,000, such a fact does not evidence that the land was worth $2,000. Incidently it might be said that there is a showing, by affidavits used in support of a motion for a new trial, that respondent was not offered a loan of $1,000, but that he endeavored to obtain a loan of $600, which was denied him, and the largest sum he could procure upon the land was $550, the sum represented by the mortgage. ...