Colonial Inv. Co. v. Kuhnhausen, 39231
| Decision Date | 16 May 1968 |
| Docket Number | No. 39231,39231 |
| Citation | 440 P.2d 975,73 Wn.2d 861 |
| Parties | COLONIAL INVESTMENT COMPANY, Appellant, v. Herman F. KUHNHAUSEN and Carrie H. Kuhnhausen, his wife; H. R. Kuhnhausen andViolet H. Kuhnhausen, his wife; Harold D. Kuhnhausen and Alma J. Kuhnhausen, his wife, Respondents, Anthony Fernandez and Marjorie Fernandez, his wife, Defendants. |
| Court | Washington Supreme Court |
Orvin H. Messegee, Seattle, for appellant.
Grant J. Saulie, White Salmon, for respondents.
Plaintiff appeals from a defense verdict in favor of defendants Kuhnhausen. Defendant Fernadez, against whom a $20,000 judgment was entered, is not a party to this appeal. Reference herein to 'defendants' relates therefore only to defendants Kuhnhausen.
After deciding to sell their timber land, defendants advertised in the May 26, 1964 issue of the Oregonian: One Tony Fernandez responded and was granted an option to purchase at a price of $60,000. That option was not exercised.
From that point on the material evidence as admitted was in sharp conflict except that Fernandez (1) introduced himself to the defendants as 'Tony Adamson,' (2) was introduced by plaintiff's president, Mr. Bryce Little, a then Seattle attorney, as 'Tony Anthony,' (3) was plaintiff's first contact regarding the acreage, (4) is now serving time in a federal penitentiary following a conviction on numerous counts of interstate transportation of stolen property (on facts not related to this cause), and (5) had produced a wholly spurious cruiser's report indicating that the land in question bore 3,431,000 board feet of timber.
Plaintiff, before acquiring the property, contracted to sell its timber for $100,000. Plaintiff then purchased the land for $60,000, using as a down payment the sum of $30,000 which it received as a prepayment for the timber. The balance of the land purchase price was to be paid from receipts on the sale of timber as removed.
When the timber was cut and removed, it scaled out at $1,196,510 board feet. The timber purchaser, not a party to this action, made no further payment and plaintiff brought this action alleging fraud and unjust enrichment. A general verdict for defendants resulted. A plaintiff's verdict against Fernandez, without damage, was also returned but the trial court entered judgment thereon for $20,000.
Plaintiff first asserts that the jury was instructed to assess damages against any defendant who committed fraud. By answer to special interrogatories, the jury found that Fernandez had knowingly made a false representation and that plaintiff had a right to, and did, rely on that representation. They returned a verdict against Fernandez, but found no damage. This, says plaintiff, was a violation of the court's instruction. Such a breach, it is reasoned, castsserious doubt on the balance of the verdict and constitutes grounds for a new trial.
We do not agree. The court corrected the error by entering a $20,000 judgment for plaintiff against Fernandez. That amount in damages is consistent with the evidence and plaintiff does not contend otherwise. The error having been corrected, plaintiff has not been prejudiced. A new trial is ordered for error, not on suspicion.
Under special interrogatories, the jury also found that defendant H. R. Kuhnhausen had made a representation to plaintiff regarding the amount of timber on the property. Plaintiff asserts that this finding is inconsistent with the general verdict for defendants. To the contrary, since the jury did not find the representation to be false, the finding is perfectly consistent with the verdict. H. R. Kuhnhausen said that he participated in a conversation with his father and Mr. Little in Portland, Oregon, on November 11, 1964. According to the testimony, Mr. Little was then expressly advised that they had heard of alleged cruises fixing the volume of timber on the land at levels somewhere between 800,000 and 2,250,000 board feet. The record is also replete with statements by the defendants that they told Fernandez of the same reported cruises. There was in fact 1,196,510 board feet. The actual volume...
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