Conta v. Corgiat
| Decision Date | 10 June 1913 |
| Citation | 132 P. 746,74 Wash. 28 |
| Parties | CONTA et ux. v. CORGIAT et ux. |
| Court | Washington Supreme Court |
Department 2. Appeal from Superior Court, King County; J. T. Ronald Judge.
Action by John Conta and wife against John Corgiat and wife and by defendants against plaintiffs. From a judgment for defendants in the first action and for plaintiffs in the second action plaintiffs in the first action and defendants in the second action appeal. Affirmed.
Vanderveer & Cummings, of Seattle, for appellants.
Vince H. Taben, of Seattle, for respondents.
Two actions in equity growing out of the same transaction between the same parties and depending upon the same state of facts are presented in this appeal. In the first the appellants Conta and wife, as plaintiffs, sued for rescission of a purchase of real estate from the respondents Corgiat and wife on the ground of fraud and misrepresentation as to the length of the lot. In the second the respondent John Corgiat sued the appellants Conta and wife, seeking to foreclose a mortgage upon the real estate in question given by the appellants to secure the payment of a part of the purchase price. Both actions were pending in the lower court at the same time, and, though there was no consolidation of the two suits, a stipulation was entered into between the parties in the foreclosure suit by their respective attorneys to the effect that the only defense claimed was that the sale in connection with which the mortgage was given was induced by false representations entitling the appellants to a rescission, and that the foreclosure action should abide the result of the action to rescind. The suit for rescission was first tried, and the trial judge made and filed a memorandum decision which he indicated should be treated as findings of facts and conclusions of law, unless other and more formal findings and conclusions were proposed by the parties. This was apparently not done; at any rate the memorandum decision made by the trial court stands in the record as the only findings of fact made in the rescission suit. There is considerable controvery as to whether this memorandum should be regarded as findings of fact, but a careful examination of it leads us to the view that it meets all the requirements of findings and that it must have been so intended by the court.
No statement of facts has been brought to us, so that the sole question presented is whether these findings justify the conclusions reached and sustain the decree dismissing the action for rescission.
The court found, in substance, that the appellant, an Italian of ordinary intelligence with a fair understanding of the English language, had spent many years in Alaska and had acquired something over $6,000; that he returned to the city of Seattle, where he married, and desired there to purchase a home and a business; that he was well acquainted with the respondent Corgiat, who was a man of standing and influence with the Italian population of Seattle; that the appellant had confidence in Corgiat and informed him of his plans, and on one occasion had asked his advice as to the value of certain property; that in 1909, the exact date is not given, Corgiat advised appellant that he could purchase a half interest in a certain saloon from one Oberto, and that he (Corgiat) would sell him a lot with the improvements thereon for a home. Corgiat offered the lot for $9,250 telling appellant that he himself had paid $9,500 for it, and appellant was led to believe from the conversation with Corgiat that the lot contained 50X120 feet. The next day appellant went with Oberto to look at the property, which is in what is known as the Dearborn street regrade. Appellant appreciating that the surface of the lot would thus be left above adjoining streets, necessitating a regrade of the lot and being unable to figure the quantity of earth to be removed, had Oberto make some calculations upon which to base an estimate. These calculations were made upon the assumption that the lot was 120 feet in length. On the following day the appellant offered $8,750 for the property, which Corgiat then refused. The next day, being Sunday, appellant with his brother, a man of means and of ordinary intelligence, visited the lot and examined it. The court states in his findings that the evidence does not show how long they were there or how careful an examination was made, but finds that there was nothing to prevent them from making the most extended or detailed examination that the appellant might require. The lines between the lot and the adjacent properties were clearly marked by an old fence on one side and a rough stone bulkhead at the rear. The house stood about four feet from the bulkhead. On Monday morning the parties again met, and Corgiat stated that he was leaving that night for California, and that if appellant wished to close the deal he would have to do so at once. Appellant then renewed his offer of $8,750, which Corgiat accepted. Appellant wished to consult a lawyer, but Corgiat told him that this would be a useless expense; that he could rely upon him to take care of unpaid taxes. It was agreed that $5,750 of the purchase price should be secured by a note and mortgage for that amount. Corgiat had the papers prepared and about noon took them to appellant's house and presented the note and mortgage to the appellant and his wife for signature. Appellant, before signing, called attention to the fact that the papers did not give the dimensions of the lot, whereupon Corgiat stated that the low was 50X120 feet. The court found the the lot fronted 50 feet on South Tenth street and 105 feet on Lane street, and that the lot would have been worth materially more had it extended 120 feet in length on Lane street. But the court stated that he made no finding that the lot with its true dimensions of 50X105 feet was worth less than the appellant had paid for it. The appellant moved into the house upon the property and lived there until November, 1910. In February, 1910, he notified Corgiat that he had discovered the shortage, and demanded a return of the purchase price and offered to redeed the property to the respondents, which offer was refused.
From these findings the court concluded that the appellant had ample time and opportunity to learn the true dimensions of the lot; that he had sufficient intelligence, if the dimensions of the lot were the real, material consideration moving him to make the purchase, to have ascertained such dimensions before signing the papers; that he had no excuse for not knowing the true dimensions of the lot, except his reliance upon the word of Corgiat; and that slight care or prudence on his part would have discovered the truth. Hence the court refused to decree a rescission, but concluded that as a matter of equity, the appellant having received...
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Gridley v. Ross
...the land sold was irregular so that one could not readily discover the shortage in acreage, an action of fraud would lie. (Conta v. Corgiat, 74 Wash. 28, 132 P. 746; Glasgow v. Brecht, 117 Wash. 245, 200 P. The ground being covered with snow, the vendee had the absolute right to rely upon t......
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