Connell v. McGill

• Decision Date: 16 April 1923
• Docket Number: 17660.
• Citation: 214 P. 1,124 Wash. 350
• Court: Washington Supreme Court
• Parties: CONNELL et al. v. McGILL et ux.

214 P. 1

124 Wash. 350

CONNELL et al. v. McGILL et ux.

No. 17660.

Supreme Court of Washington

April 16, 1923

Department 2.

Appeal from Superior Court, King County; Austin E. Griffiths, Judge.

Action by Minnie Connell and husband against O. H. McGill and wife. From judgment of dismissal, plaintiffs appeal. Reversed and remanded, with instructions.

Guie &amp Halverstadt, of Seattle, for appellants.

Lane &amp Thompson, of Seattle, for respondents.

FULLERTON, J.

The appellants, Connell, brought this action against the respondents to rescind a contract for the purchase of real property and to recover amounts paid on the purchase price and in improving the land. The grounds of the action were false and fraudulent representations made by respondent O. H McGill, and his agents, at the time the contract was entered into. Upon the closing of appellants' case, the court below granted a motion to dismiss upon the ground that sufficient facts had not been proved to entitle appellants to the relief sought. From a judgment entered on the order, this appeal is prosecuted.

The property in question was described by metes and bounds in the contract, and was described also as tracts 61, 62, and 68 of 'Overlook addition to Seattle.' The plat of this additional had not been recorded. The false representation upon which appellants base their prayer for relief is that the plat showed the lots to be facing upon a 60-foot street known as 'Lancaster lane,' whereas in fact there is no such street.

The testimony of both appellants is practically the same. They testified that after Mrs. Connell had spoken to Mrs. McGill concerning their desire to purchase the property, Mr. McGill came to see them about the deal, and the three of them walked over the tracts, examined the surveyor's stakes, and compared the numbers on the stakes with a copy of the plat. They both testified that at that time Mr. McGill assured them that Lancaster lane was a public street, and further assured them that a house that encroached upon it had been condemned by the city, because of its location on a public street, and would be removed. They also testified that the first knowledge they had that the strip of land was not a public street was when it was fenced up by the owner. At that time, or soon thereafter, they were served with the complaint in an action to enjoin them from cutting or otherwise interfering with the fence.

The contract was entered into in March, 1920, and this fence was erected in the late summer or fall of that year; the verification of the complaint in the injunction suit being signed on October 30th. About the time the injunction suit was started, appellants testify, they informed Mr. McGill of the trouble, and he led them to believe that the trouble concerning the street would be cleared up and its public character established. Relying upon this promise, they continued to pay on the contract until January, 1921, when they refused to pay more until the question of the street was settled. Nothing further was done, and on August 23, 1921, they notified respondents of their election to rescind the contract.

It is undisputed that this street or lane shown on the plat was the only means of ingress to the property, and that after its fencing appellants were forced to climb over it or cut it until the agent of the owner erected a gate and permitted its use by them, with the express understanding that it was not to be considered as a public street.

From a careful reading of all the evidence, we are of the opinion that appellants fully met the burden the law places upon them, and that the showing made was at least sufficient to put respondents on their proof, and if not disproved or explained, to entitle them to the relief sought.

In Bradford v. Adams, 73 Wash. 17, 131 P. 449, a rescission was allowed where the vendor had pointed out boundary lines incorrectly; the court saying:

'From numerous decisions of this court, it has become the settled doctrine that the vendor, when he undertakes to point out lands or boundaries to a purchaser, must do so correctly. He has no right to make a mistake except under penalty of having the contract rescinded or responding in damages.'

This court considered a very similar situation in Kuehl v. Scott, 66 Wash. 318, 119 P. 742, where the principal false representation involved was that the property sold fronted on a 25-foot street, when in fact it was only 15 feet in width. In affirming a judgment of rescission we said:

'The evidence shows that there is no outlet from the land other than over Seventieth street; hence, the width of that street materially affects the value and desirability of the land. This is particularly true when the width of that street is reduced to the very narrow width of 15 feet. At the time of the making of the contract, the street was not improved so as to in any manner indicate its width, and respondents had then no means of readily ascertaining its true width, and had no reason to doubt the representations made

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