Dieterich v. Rice

• Decision Date: 12 April 1921
• Docket Number: 16053.
• Citation: Dieterich v. Rice, 115 Wash. 365, 197 P. 1 (Wash. 1921)
• Court: Washington Supreme Court
• Parties: DIETERICH et ux. v. RICE.

197 P. 1

115 Wash. 365

DIETERICH et ux. v. RICE.

No. 16053.

Supreme Court of Washington

April 12, 1921

Department 1.

Appeal from Superior Court, Pend Oreille County.

Action by D. W. Dieterich and wife against D. E. Rice. Judgment of dismissal on demurrer, and plaintiffs appeal. Reversed and remanded, with instructions.

Mulligan & Bardsley, of Spokane, for appellants.

Davis &amp Heil, of Spokane, for respondent.

FULLERTON, J.

On March 21, 1919, the appellants Dieterich entered into a written contract with the respondent, Rice, by the terms of which they agreed to purchase, for a stated consideration certain specifically described lands situated in Pend Oreille county. The contract contained the following clause:

'This land is sold to second party subject to any and all county roads and with the understanding that he has personally and carefully inspected said premises, and is purchasing the same by said inspection, and not from and other sayings or inducements by first party or his agents and there has been no other inducements other than recited herein, and that no changes or verbal agreements now or hereafter will be binding on either party, unless reduced to writing and signed by both first and second parties.'

In October, 1919, the appellants began the present action to rescind and annul the contract and to recover the sum paid on the purchase price. The action is based on fraud and deceit. It is alleged that the respondent stated and represented to the appellant D. W. Dieterich, as an inducement to the purchase of the land, that the land was in a vicinity free from destructive frosts, was tillable agricultural land, that the soil thereof was fertile, and of extra good crop-producing quality; that each year, for several years next prior to the execution of the contract, the threshing bill for threshing grain grown on the land was between $300 and $400 each year; that the average production of wheat per acre for three successive years next prior to the execution of the contract had been between 25 and 30 bushels per acre and that the average production of oats per acre for a like period had been between sixty and seventy-five bushels; that in one certain year the land produced at the rate of 46 bushels of wheat and 103 bushels of oats per acre that the hay theretofore grown on the land had averaged between 1 1/2 and 2 1/2 tons per acre in each year; that the orchard thereon produced fruit in every year sufficient for the use of any family; that the land abutted upon a public highway, connecting directly with the city of Spokane, from which place buyers of produce came to the farm each year for the purchase of produce grown on the farm; and that the defendant had sold to such purchasers as much as $700 worth of produce in one day. Specifically it is alleged: 'That plaintiff prior to the execution of said contract went with the defendant to view said land and property, and said defendant purported to take this plaintiff upon a small portion thereof, at which time the defendant pointed out and showed this plaintiff land and property other than the land described in the contract, and stated that it was a part of the land this plaintiff was intending to purchase.'

The appellants, by appropriate allegations in their complaint, negatived the truth of the representations concerning the character of the land, its soil, and the quantity of the crops that had theretofore been grown thereon, averring that the land had little or no value for agricultural purposes. They alleged that the land did not about upon the highway mentioned, and that the representations as to sales of produce grown on the land of purchasers reaching the land by the highway were false and untrue. They alleged that they had visited the land but once prior to entering into the contract of purchase, that they were strangers in the vicinity of the land and strangers in the state of Washington, and had no independent knowledge of the soils in the vicinity of the land or of the climatic conditions surrounding it. They alleged that representation made concerning the property were made for the purpose of inducing them to enter into the contract of purchase; that they were known to be false by the respondent at the time they were made; and that the appellants, relying thereon and believing the same to be true, were induced thereby to enter into the contract.

To the complaint a general demurrer was interposed, which the trial court sustained. The appellants elected to stand on the complaint, whereupon a judgment dismissing the action was entered. This appeal is from the judgment so entered.

The ultimate question before us therefore is: Does the complaint state facts sufficient to constitute a cause of action? That the allegations concerning the representations, laying aside any other consideration, are sufficient to pur the respondent on his defense, our prior holdings in kindred cases do not leave in doubt. The cases will be found collected in part in the case of McMillan v. Hillman, 66 Wash. 27, 118 P. 903, and no further reference need be made to them. But it is said that the appellants are estopped to urge these representations as fraudulent by the clause of the contract which we have heretofore set forth at length. This contention is so effectually answered by the Court of Appeals of New York, in the case of Bridger v. Goldsmith, 143 N.Y. 424, 38 N.E. 458, that we feel justified in quoting from it somewhat at length. In that case the defendant sold to the plaintiff his business, fixtures, and property, making grossly false and fraudulent statements as to the character and value of the property and the extent and magnitude of the business to induce the purchase. The contract of sale was reduced to writing and executed under seal. It contained the following clause:

'It is expressly understood and agreed between the parties hereto that the said party of the first part has not, in any manner or form stated, made or represented to the said party of the second part, for the purpose of inducing the sale of the said business or the making of this agreement, any statements or representations, verbally or in writing, in respect to the said business, other than that the said party of the first part has been engaged in the piano business in the city of New York since 1867.'

Discussing the question whether this clause estopped the plaintiff from asserting the fraudulent...