Forrester v. Jastad

• Decision Date: 14 August 1917
• Docket Number: 14101.
• Citation: 167 P. 55,97 Wash. 633
• Court: Washington Supreme Court
• Parties: FORRESTER et ux. v. JASTAD et ux.

167 P. 55

97 Wash. 633

FORRESTER et ux. v. JASTAD et ux.

No. 14101.

Supreme Court of Washington

August 14, 1917

Department 2. Appeal from Superior Court, Lewis County; A. E. Rice Judge.

Action by William Forrester and wife against Omund O. Jastad and wife. Judgment for plaintiffs and defendants appeal. Reversed, with instructions.

Forney & Ponder, of Chehalis, for appellants.

C. A Studebaker, of Chehalis, for respondents.

FULLERTON J.

This is an action for damages for false representations in the sale of land, in which it is sought to offset the damages because of the false representations against certain promissory notes given as part of the purchase price of the land, and to permanently restrain the defendants from transferring such notes and the mortgage given to secure their payment. The cause was tried to the court. No findings of fact or conclusions of law were made, except such findings and conclusions as were incorporated in the decree. The court assessed the damages of plaintiffs in the sum of $500, and directed the cancellation of the note for that sum, which was past due, and further made its restraining order against the transfer of that note permanent. The court also directed the delivery to plaintiffs of a deed tendered in court by defendants for a strip of land which had been included in the sale, but to which defendants had no title at the time of the execution of the original deed. This deed was withdrawn from the files and recorded by the plaintiffs. The defendants appeal, assigning various errors, only two of which we have found it necessary to notice.

The appellants first contend that the action was one for damages for the breach of a contract, and therefore the allowance of equitable relief by the court was erroneous. The complaint was based upon the fraud of appellants; but, instead of seeking rescission on that ground, they sought to recover damages. It was alleged that appellants had no property other than respondents' notes and mortgage, and asked that any recovery allowed be set off against respondents' notes to appellants still due on the purchase price, and, further that appellants be enjoined from disposing of such notes pendente lite, and from foreclosing the mortgage securing the same. Under Rem. Code, § 153, an action may be maintained for both legal and equitable relief. Durga v. Lincoln Creek Lbr. Co., 47 Wash. 477, 92 P. 343.

The essence of the action is to relieve respondents from liability on notes procured from them by fraud, and to restrain the negotiation of such notes to an innocent holder whereby the liability of respondents would be confirmed, and the appellants enabled to place themselves in a position to defeat the enforcement of any judgment against them for damages. The action is cognizable in equity. Conaway v. Co-operative Homebuilders, 65 Wash. 39, 117 P. 716.

The evidence shows that the respondent William Forrester was a ship carpenter working at Bremerton, and that he had decided, owing to his advancing years, to buy a small farm on which he could make a home. He noticed in a Seattle newspaper the following advertisement:

'Complete dairy and hog ranch. 80 acres of rich mellow soil. Not a rock or gravel. 35 acres cleared, mostly in clover. 3 acres bearing orchard. 7-room house. Large dairy farm. 6 cows, 4 head of young stock, 3 hogs, young team of draft horses worth $400.00; chickens, complete set of farm machinery, barn full of hay and other crops, and in a fine farming section. Price $3,700.00. One-half cash. Southwest Washington Land Company, Second Ave., Downs Building.'

The respondent repaired to the Seattle office of the realty company, where he was shown a sample of soil from the farm advertised, and was assured that the place was just as represented. He was sent down to the Centralia office of the company the latter part of November, 1913, and was conducted by its local officers to the farm of the appellants Jastad. The day was cold and rainy, and only a couple of hours were spent in an inspection of the place, principally occupied in looking at the cleared portions of the land and the buildings and stock. The respondent did not attempt to go all over the place, which was largely uncleared sloping land, with a few benches. The parts he was shown were the only parts adapted to cultivation, but the stony and gravelly nature of the land was readily visible, although respondent testified he did not notice it. The cleared portions, some half dozen in number were scattered over the 80 acres, were irregular in shape, and it was difficult to estimate the exact acreage in them. Respondent testified the appellant assured him there were 35 acres of that class, but the appellant denies stating that amount, either to respondent or to his own agents, who advertised that quantity. He claims that he did not tell respondent there were more than 25 acres cleared; but he admits speaking of one tract as containing 16 to 18 acres and another tract as containing 7 acres of cleared land, and that he did speak of other cleared pieces, three small parcels, which according to respondent's testimony of the figures given by...