Eyers v. Burbank Co.

• Decision Date: 16 July 1917
• Docket Number: 13705.
• Citation: 166 P. 656,97 Wash. 220
• Court: Washington Supreme Court
• Parties: EYERS v. BURBANK CO.

166 P. 656

97 Wash. 220

EYERS v. BURBANK CO.

No. 13705.

Supreme Court of Washington

July 16, 1917

Department 2.

Appeal from Superior Court, Franklin County; Bert Linn, Judge.

Action by N. R. Eyers against the Burbank Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Gerard Ryzek and A. J. Elrod, both of Pasco, for appellant.

Chas W. Johnson, of Pasco, for respondent.

HOLCOMB J.

Respondent's second amended complaint, as it stood after a motion had been passed upon to strike various allegations in his preceding amended complaint, alleged in substance as follows:

(1) That prior to January 1, 1915, the Burbank Company, a corporation of the state of Washington, employed representatives in the state of Wisconsin for the purpose of securing purchasers for lands situated in Walla Walla county Wash.

(2) That, for the purpose of inducing respondent to enter into a contract for the purchase of lands, appellant represented to respondent that it had in growing alfalfa 20 acres of land described therein, which was producing from seven to nine tons of alfalfa per acre, which land was under irrigation; that the Burbank Company had employment; that it had a herd of 20 dairy cattle; that all of those representations were made by the company's agents both in Wisconsin and in the state of Washington; that respondent did not have any knowledge of the facts existing at Burbank, and had no knowledge as to appellant's representations about facts herein before stated, and could not determine the truth or falsity of the statements until respondent visited Burbank, and then not until the latter part of a growing season had expired; that respondent is by occupation a common laborer; that he was induced to invest under the appellant's representations, and that he was unversed in conditions existing at Burbank under the Burbank project; that he had no knowledge or information as to conditions nor as to the truth or falsity of the statements made by the appellant nor as to the land controlled by appellant.

(3) That the company further represented that the land described was of the reasonable and just value of $6,000; that in truth and in fact the land was of the value of approximately $2,000; that the respondent had no knowledge or information upon which to determine the truth or falstiy of the statements of the defendant.

(4) That all of the representations so made by the appellant to the respondent were false, fraudulent, and the appellant had no reason to believe them true, and they were made for the purpose of damaging the respondent by inducing him to part with his money and savings, and for the purpose of further inducing him to sign a certain written agreement for the purchase of the described premises, which contract provides for the payment of $6,000, with interest at the rate of 6 per cent. per annum until paid, and for the further sum of $70 per annum maintenance fee.

(5) That, relying upon appellant's representations, respondent moved from the state of Wisconsin to the tract at Burbank, and executed the contract as hereinbefore stated.

(6) That the respondent relied upon the representations made by appellant, which representations were false, fraudulent, and made for the purpose of defrauding respondent, and respondent, by reason of appellant's false and fraudulent representations, has been damaged in the full and just sums specifically itemized as follows: $600 consideration for execution of the contract; $250 expended in locating himself, his wife, and five children upon the land; $500 personal labor in improving the premises; $200 in labor performed by his family, principally his wife; $500 loss of time during respondent's occupancy of the land (this item was withdrawn during the trial); $700 expended in buildings and permanent improvements upon the land described; and $490.90 expended in permanent improvements and buildings upon the land, due the White River Lumber Company, for which that company has taken judgment against respondent, and for which respondent is liable (this item was corrected during the trial to the sum of $453.85)--or a total demand (after withdrawal and corrections) of $2,703.85, for which sum respondent demanded judgment.

After issue joined and a trial to the court and jury, the jury returned a general verdict for $1,669.95 in favor of respondent, and answered interrogatories showing their findings to be based upon the following items within respondent's demands for judgment as follows: As consideration for the execution of the contract under respondent's first item, $75; as expenses for locating himself and wife and children upon the land under the second item, $200; for personal labor of respondent in improvements upon the premises under the third item of damage, $250; for labor performed by the family of respondent under the fourth item, $25; for expenditures in building and permanent improvements upon the land under the fifth item, $665; and under the sixth item $453.85.

Appellant demurred to the second amended complaint, especially demurring to paragraph 3 thereof for the reason that it did not state facts sufficient to constitute a cause of action, and especially demurring to paragraph six and to each and every allegation of damage separately alleged for the reason that the same did not state facts sufficient to constitute a cause of action, and generally to the entire amended complaint for the reason that the same did not state facts sufficient to constitute a cause of action.

The refusal of the court to strike the allegations contained in the complaint, with reference to the fact that appellant had a herd of 20 dairy cattle, and that it had employment, constitutes appellant's first ground of error. This claim is immaterial for the reason that the court refused to permit any testimony to go to the jury in support of those allegations, considering them allegations of merely promissory representations; and, although the ruling of the court is criticized by respondent, he did not reserve error thereon. Those allegations were not material, and should have been stricken even though proof of such representations might have been introduced as promissory representations in support of the principal inducements alleged to have been held out by appellant to the respondent; but as bases of recovery they have no standing, and the court did not permit them to have.

The overruling of the demurrer to the second amended complaint constitutes appellant's second assignment of error. In support of this assignment appellant strenuously urges that the allegations of the complaint were not sufficient, in that the complaint did not allege wherein the representations which were alleged to be false were false in fact, but stated only general conclusions that they were false; that the allegations of damage were not based upon the proper measure of damage. As to the first element of this contention, it is true that the allegations of falsity of the representations are general, and there are no facts stated specifically as to wherein the representations were false. But the complaint alleges that the representations were all false, and that they were made without reason to believe that they were true, and for the purpose of inducing the respondent to act upon them, and that he did so act to his damage.

While the complaint is somewhat deficient, it is not wholly defective. Where the allegations of a pleading state mere general conclusions or ultimate facts, the proper method of attacking such general allegations is to move for them to be made more definite and certain instead of demurring generally to them. This was not done, and the appellant cannot now complain that the specific facts were not set forth. Mills v. Rice, 3 Neb. 76; Morse v. Gilman, 16 Wis. 504; Fitch v. Applegate, 24 Wash. 25, 64 P. 147; Pomeroy on Code Remedies, § 443, and note.

In support of the second phase, as to the measure of damages alleged in the complaint being insufficiently and improperly pleaded, appellant cites much law to the effect that in an action for deceit and fraud the vendee has an election of remedies, that he may bring his action for a rescission of the contract or he may bring an action for damages for the fraudulent inducement, but that he cannot do both, that he has here elected to bring an action for damages for the fraudulent inducement, and that in so doing he waived his action for a rescission, and that the measure of damages for fraud and deceit is the difference between the value of the property at the time of the sale and what its value would have been if it had been as represented, citing many cases.

That is the true rule where the vendee retains possession and title of the property, and no better discussion of that rule has been made than can be found in Tacoma v. Tacoma Light & Water Co., 17 Wash. 458, 50 P. 55, and West v. Carter, 54 Wash. 236, 103 P. 21. See, also, Wilson v. New U.S. Cattle-Ranch Co., 73 F. 994, 20 C. C. A. 241; Bunck v. McAulay, 84 Wash. 479, 147 P. 33; 20 Cyc. 132; 14 Am. & Enc. Ency. Law (2d Ed.) 182; Bigelow on Frauds, 627.

But these principles do not apply to the case under consideration. While it is not alleged in the complaint, it is shown by evidence introduced during the trial, that appellant, about July 11, 1915, terminated the contract presumably for an alleged breach of some condition subsequent, having previously taken possession of the land during June, 1915, about six months after the contract with respondent was made. This was later effected by the physical dispossession of the respondent by the sheriff. In any event there was actual dispossession of respondent and repossession by appellant, and appellant, so far as possession of the land was...