Grant v. Huschke

• Decision Date: 11 September 1912
• Citation: 126 P. 416,70 Wash. 174
• Court: Washington Supreme Court
• Parties: GRANT v. HUSCHKE.

126 P. 416

70 Wash. 174

GRANT v. HUSCHKE.

Supreme Court of Washington

September 11, 1912

Department 1. Appeal from Superior Court, Spokane County; J. Stanley Webster, Judge.

Action by J. D. Grant against Ernest Huschke. From an order granting a new trial after verdict for defendant, he appeals. Reversed, with directions.

Merrill Oswald & Merrill, of Spokane, for appellant.

Mark F Mendenhall, of Spokane, and Geo. D. Emery, of Seattle, for respondent.

GOSE J.

The plaintiff brought this suit to recover upon two causes of action. The first cause of action has no bearing upon the controversy here. In the second cause of action it is alleged that on November 1, 1909, the defendant sold and assigned to the plaintiff a certain contract in writing for the sale of real estate situated in the city of Seattle that taxes in an amount stated were then due upon the property, and that as a part of the contract the defendant promised to pay them. As an affirmative defense and counterclaim, the defendant alleged that about the 1st day of November, 1909, he exchanged his right, title, and interest in certain real estate situate in the city of Seattle for a 20-acre tract of land in Spokane county, describing it, 'together with the water right thereunto appurtenant,' then belonging to the plaintiff and his wife, and that he then and there assigned to the plaintiff a written contract which he held for the Seattle property; that the plaintiff and his wife then conveyed the Spokane county property to the defendant; that the transaction was carried on in the city of Seattle, where all the parties resided; that, for the purpose of inducing the defendant to exchange the properties, the plaintiff falsely and fraudulently represented to the defendant that the real estate situate in the county of Spokane was 'all as level as a floor, would not have to be leveled for the purpose of irrigation, that it was all first-class fruit land, and that all of it was capable of being cultivated and irrigated'; that the representations were not true; that the plaintiff knew them to be false; that the defendant believed them, and relied 'exclusively' thereon; that he had no knowledge to the contrary, and no opportunity of inspection; that he had never seen the land, and that, owing to its remoteness from Seattle, he could not inspect it. It is further alleged that the Spokane property is 'hilly,' that upon the hills there are only eight to ten inches of good soil, which is underlaid with sand, that a leveling of the land would remove the top soil and uncover the sand, that by reason of the contour of the land it is impossible to irrigate a great portion thereof, and that the defendant has been damaged by reason of such false representations in the sum of $750. The plaintiff replied, denying the allegations of false representations, and admitting the exchange of properties as alleged. There was a verdict for the defendant in the sum of $618.15. Thereafter, on the motion of the plaintiff, a new trial was granted. The defendant has appealed.

The order granting a new trial recites: '* * * It appearing that at the trial of said cause questions were propounded to defendant's witnesses by defendant's attorneys asking such witnesses the fair, reasonable market value of the land upon November 1, 1909, acquired by the defendant in a trade with the plaintiff, and that plaintiff's attorney objected at the time to each of said questions, for the reason that the water rights were not coupled with the land and included in said questions, and it further appearing that each of such objections were erroneously overruled by the court, and that the court at the trial of said cause erroneously failed to require defendant's attorneys in their questions relative to the value of said land to couple therewith the water rights appurtenant thereto, and it further appearing that at the trial of said cause the court stated that it would instruct the jury that defendant does not claim anything because of the failure to have water on the land, and that the court omitted and failed to give such instruction to the jury, and the court being of the opinion that the...