Frahm v. Moore

• Decision Date: 16 May 1932
• Docket Number: 23276.
• Citation: 11 P.2d 593,168 Wash. 212
• Parties: FRAHM v. MOORE et al. WATSON-MOORE CO. v. FRAHM.
• Court: Washington Supreme Court

11 P.2d 593

168 Wash. 212

FRAHM v. MOORE et al.

WATSON-MOORE CO. v. FRAHM.

No. 23276.

Supreme Court of Washington

May 16, 1932

Department 2.

Appeal from Superior Court, King County; John A. Frater, Judge.

Separate suits by Dorothy Frahm against Alma V. Moore and husband, and their marital community, and by the Watson-Moore Company against Dorothy Frahm. From judgments for plaintiffs in both actions, defendants in the first action and plaintiff in the second action separately appeal.

Judgment against defendants in the first action affirmed. Judgment against defendant in the second action modified, and, as modified, affirmed.

Roberts Skeel & Holman and Tyre H. Hellander, all of Seattle, for appellants.

Bausman Oldham, Cohen & Jarvis and Hart Snyder, all of Seattle, for respondent.

BEALS, J.

May 5 1930, and within two weeks after entering the employment of Alma V. Moore, proprietor of Green Gate Coffee Shop No. 2, in the city of Seattle, the plaintiff, Dorothy Frahm, purchased the restaurant from Mrs. Moore at the agreed purchase price of $6,000, of which $1,000 was paid in cash. Plaintiff gave her promissory note for the balance, payable $250 per month, secured by a chattel mortgage upon the fixtures and equipment. On the date of sale, possession of the restaurant was delivered to plaintiff, who operated the establishment until the latter part of August following, when, after she had been served by her landlord with a notice to quit or pay rent, plaintiff notified defendants Moore that she elected to rescind the sale because of alleged fraudulent representations, after which possession of the premises was assumed by Watson-Moore Company, and, as we hold, by defendants. Plaintiff thereafter sued Alma V. and John R. Moore, seeking a rescission of the contract to purchase the restaurant and judgment for the return of the money which she had paid on account of the purchase price thereof, amounting to $1,250, together with damages which she claimed she had sustained by reason of misrepresentations made to her by and on behalf of defendants. Mrs. Moore filed a cross-complaint, asking for judgment on the $5,000 note, and foreclosure of the chattel mortgage.

Watson-Moore Company, a corporation, at the same time instituted suit against Miss Fraham, seeking recovery on account of rent for the premises in which the restaurant was located. By stipulation the two actions were tried together. The trial court, in the action instituted by Miss Frahm, rendered a decree in her favor, rescinding the sale, awarding her judgment for $1,250, being the amount which she had paid on account of the purchase price of the restaurant property, and denying to the defendants in that action any relief on their cross-complaint, holding that Mr. and Mrs. Moore had acquiesced in Miss Frahm's rescission of the contract. In the action for rent, the court granted Watson-Moore Company a decree for $53.85, and established the same as a lien upon certain personal property and equipment therein described.

Alma V. and John R. Moore appeal from the decree rendered against them in the suit brought by Miss Frahm, and Watson-Moore Company appeals from the decree rendered in its favor in the action for rent, contending that judgment should have been rendered in its favor for a larger amount. By stipulation the causes have been consolidated for hearing in this court, and we shall first consider the appeal taken on behalf of Mr. and Mrs. Moore.

The appellants on this appeal contend that the trial court erred in decreeing a rescission of the sale; in entering judgment in favor of Dorothy Frahm (who will hereinafter be referred to as the respondent) for $1,250, or for any amount; in canceling the note and chattel mortgage given by respondent as security for the balance of the purchase price; in dismissing the cross-complaint of appellant Alma V. Moore seeking judgment on this note and foreclosure of the chattel mortgage securing the same; in refusing to admit testimony offered by appellants; and in denying their motion for a new trial.

It appears from the evidence that, prior to July 1, 1929, appellant John R. Moore purchased the restaurant fixtures and equipment at 204 Marion street, Seattle, the premises here in question, and that shortly thereafter his wife, appellant Alma V. Moore, who had theretofore been conducting at another location a restaurant known as Green Gate Coffee Shop, commenced to operate the Marion street premises as Green Gate Coffee Shop No. 2. It is earnestly contended that the last-mentioned business, because of certain dealings between Mr. and Mrs. Moore, and because of her investment therein of money which she had received from her father, became her separate property, and that the trial court erred in holding that the restaurant was the community property of Mr. and Mrs. Moore. Examination of the evidence convinces us that the trial court did not err in this ruling, and that, if the record shows that respondent is entitled to return of the money which she paid on account of the purchase price of the restaurant, the judgment properly runs against Mr. and Mrs. Moore as a marital community.

It appears that under Mrs. Moore's management the restaurant prospered and was well patronized by persons employed in the vicinity. Respondent, who was about thirty years of age, of German birth and education, had resided in Seattle for about six years, and, without experience in business other than that obtained as cook in private families, entered Mrs. Moore's employ as salad maker in Green Gate Coffee Shop No. 2. Learning that the coffee shop was for sale, respondent informed Mrs. Moore that she might consider buying the place, and the matter was thereafter discussed between the parties. Respondent took the matter up with Miss Valerie Campbell, who was managing shop No. 2 for Mrs. Moore, and received from Miss Campbell certain information as to the earnings of the coffee shop and the expenses of operation thereof. Respondent also sought the advice of her friend, Mr. Thomas E. Driscoll, with whose family respondent was well acquainted, and Mr. Driscoll made some investigation of the situation, and advised respondent not to make the purchase. Notwithstanding this advice, respondent did buy the restaurant, which not long thereafter ceased to produce sufficient returns to pay the expenses of operation thereof, with the result that respondent fell behind in her rent, and, when payment thereof was demanded by her landlord, she abandoned the business, as above stated.

Appellants argue that respondent was temperamentally unfitted to successfully conduct such a business, and that the failure of the restaurant to pay expenses was due to this cause, as well as to respondent's inexperience, her inability to get along with her employees, and her lack of tact in meeting her patrons. Granting that some of these contentions of appellants may have some support in the testimony, we hold that the judgment of the trial court is supported by clear, cogent, and convincing evidence, and that respondent's right of recovery should not be defeated, in view of the evidence, because of her inexperience or temperament. Had respondent been told the truth, she might...