Darnell v. Noel

• Decision Date: 05 August 1949
• Docket Number: 30985.
• Citation: 34 Wn.2d 428,208 P.2d 1194
• Parties: DARNELL et ux. v. NOEL et ux.
• Court: Washington Supreme Court

208 P.2d 1194

34 Wn.2d 428

DARNELL et ux. v. NOEL et ux.

No. 30985.

Supreme Court of Washington

August 5, 1949

Department 2

Suit by W. E. Darnell and Helen Darnell, husband and wife, against Frank Noel and Philomine Noel, husband and wife, for rescission of sale of realty and personalty. From an adverse judgment, defendants appeal.

Appeal from Superior Court, Yakima County; Dolph Barnett, judge.

Chency & Hutcheson, Yakima, for appellants.

Elery A. Van Diest, Yakima, D. H. Bonsted, Yakima, for respondents.

SIMPSON Justice.

Plaintiffs instituted their action as purchasers against defendants as sellers for rescission of the sale of real and personal property on the ground of fraudulent representations by the defendants as to a portion of the boundary line enclosing the real estate. The court entered its decree in favor of plaintiffs, rescinding the sale and giving them judgment for the purchase price, less certain credits for rents received.

Defendants on appeal to this court, make ten assignments of error which are sufficient to challenge the decree, the amount of rents received, and the court's refusal to grant a new trial.

Appellants call attention to the fact that this is a suit in equity and the court must hear the case de novo. This statement is without doubt, based upon our statute, Rem.Rev.Stat. § 1736. We have in the past given the statute a reasonable construction. It was never contemplated that we should take up and examine the evidence incorporated into the statement of facts and pass upon its weight without any consideration of, or reference to, the decision of the trial court, or other means afforded by that tribunal, for deciding questions of fact.

The fundamental and primary power of this court as given it by our state constitution is that of a court of appeals. Its functions as an appellate tribunal are essentially different from those of the trial court, and it is not within the power of the legislature to confer or impose upon this court, in cases over which it acquires jurisdiction by appeal powers, those powers and duties which naturally belong to a trial court. We cannot weigh the preponderance of conflicting oral evidence for oft-stated and obvious reasons. In line with this conclusion, we have adopted rules of law which govern our consideration of equity cases. These rules were collected and restated in Columbia Lumber Co. v Bush, 13 Wash.2d 657, 126 P.2d 584, 588. In that case we restated the rule as follows:

'Findings of fact are not required in equity cases, but if they are made by the trial court they will be considered and given great weight if the statement of facts is included in the record Before us.

'Equity cases are tried de novo in this court. In so considering the case it is our duty to make an independent examination of all of the evidence and all of the circumstances surrounding the various parties to the action as disclosed by the statement of facts, and from that examination decide what findings should have been made.

'If the determination of the cause depends upon testimony which is in serious conflict, or upon evenly balanced evidence, this court will not disturb the findings of the trial court unless other factors are present which compel us to reach a contrary conclusion. However, if this court ascertains from the entire record that the findings are not supported by a fair preponderance of the evidence, they will be disregarded.'

No findings of fact or conclusions of law were made by the trial court in this case. Under our rule, it becomes necessary to examine the statement of facts, including the exhibits admitted in evidence. Before referring to the facts, however, it seems advisable to set out certain general rules of law which govern actions relating to charges of misrepresentation of boundary lines during the time real property is being sold.

Whenever the owner of property undertakes to point out to a prospective purchaser the boundaries of the property he expects to sell, his representations are matters of fact, and not of opinion. In indicating the boundaries, he must do so accurately, and his failure so to do will amount to a false representation, even though he acted under an honest mistake, without intent to deceive. Lawson v. Vernon, 38 Wash. 422, 80 P. 559, 107 Am.St.Rep. 880; Freeman v. Gloyd, 43 Wash. 607, 86 P. 1051; Shaw v. O'Neill, 45 Wash. 98, 88 P. 111; West v. Carter, 54 Wash. 236, 103 P. 21; Bradford v. Adams, 73 Wash. 17, 131 P. 449; Lyle v. Cunningham, 79 Wash. 420, 140 P. 330; Algee v. Hillman Inv. Co., 12 Wash.2d 672, 123 P.2d 332; Thompson v. Huston, 17 Wash.2d 457, 135 P.2d 834; Dixon v. MacGillivray, 29 Wash.2d 30, 185 P.2d 109.

The property in question, owned by appellants for thirty-five or forty years, is situated on the east side of North Tenth street, and at the east end of B street in Yakima, Washington. B street extends in a westerly and easterly direction, extending east of North Tenth street for several feet. The parcel of land, containing over one acre, is 337 feet long on the north boundary, and 157 feet on the east boundary. A two-story, ten-room house faces west along B street. At the time of the purchase, a garage and other buildings were located on the south portion of the property. The property was described in the deed by metes and bounds and included, in the south and west sides, a portion of B street. In fact, the front portion of the house stood on B street. The entire space between the residence and North Tenth street was used for a lawn and the location of trees and shrubs. There was nothing to indicate to any one that B street extended east of North Tenth street.

Appellants listed the property for sale, and the sale sign was noticed by a Mrs. Alice Nelson. She contacted respondents and went with them to see the property. Mr. Darnell parked his car in the rear of the house, and all parties, including Mrs. Nelson, engaged in a conference. Respondents finally agreed to purchase the real property, together with some personal property, for $15,200, and paid as earnest money on their first visit, the sum of $3,000.

In September, 1947, respondents learned that a portion of the property included in the deed and in the area formerly maintained by appellants, was in fact a portion or part of B street. He then notified appellants of his discovery. The parties, thereafter, endeavored to have that part of B street included in the deed, vacated. The city commission passed an ordinance whereby the city vacated the north fifty feet of B street, thereby leaving the south thirty feet still in the public street. The north line of the thirty-foot portion of the street is but eighteen inches south of the house.

The evidence relative to whether appellant Noel made any representations concerning the boundaries of the property is in serious dispute. Mr. Darnell testified that Frank Noel pointed out the southwest corner of the property at a point where Noel said there was a buried pipe. Noel then took him to the northwest corner where he stated there was another buried pipe. Noel then escorted Darnell through some berry bushes to a point described by Noel as the northeast corner. Darnell then was shown the east side of the property where Noel indicated the location of the southeast corner of his property, and then stated that his south line ran directly from the indicated northeast corner to the first point shown to Darnell.

Mr. Noel denied that he had indicated in any way the boundaries of his property. He stated that on the day the earnest money was paid, he told Darnell, while in his house: 'Before you buy that place, let's go out and look at it,' and Darnell answered, 'I know all about this place.'

He admitted that immediately after the deed was delivered he...