Hanson v. Tompkins

• Decision Date: 01 July 1891
• Citation: 27 P. 73,2 Wash. 508
• Parties: HANSON ET AL. v. TOMPKINS.
• Court: Washington Supreme Court

27 P. 73

2 Wash. 508

HANSON ET AL. v. TOMPKINS.

Supreme Court of Washington

July 1, 1891

Error to superior court, Snohomish county.

Action by George E. Tompkins against Ole Hanson on a note. Judgment for plaintiff. Defendant appealed. Reversed.

W P. Bell, L. F. Hart, and Andrews & Barnes, for plaintiff in error.

Craddock & Miller, for defendant in error.

DUNBAR, J.

This was an action brought upon a promissory note for $350 not yet due, and for $50 attorney's fee, with an allegation that defendants were about to remove from the state of Washington and the United States, refusing to make arrangement for securing the payment of said debt, with prayer for judgment and for the issuance of a writ of attachment. Affidavit for attachment was filed. The answer admits the execution of the note, and alleges want of consideration; alleges the fact to be that plaintiff sold defendant a certain tract of land for $1,350, $1,000 of which was paid down, and the note for $350 was given for the balance of the purchase price of said land that the number of acres bought was understood to be 40, at an agreed price of $33.75 per acre. This land was composed of lot No. 2, and a small portion of the N.W. 1/4 of section 22 township 29 N., of range 5 E. of Willamette meridian. That plaintiff, intending to cheat the defendant and co-defendant, falsely and fraudulently represented to them that said lot 2 contained 36 1/2 acres, when in truth and in fact it contained but 26 1/2 acres; and that, wholly and solely relying on the said fraudulent and false representations of plaintiff, defendant and co-defendant, believing there were 40 acres in said tract of land, signed the said note for $350. That the plaintiff agreed with and promised defendant, on the 12th day of December, 1889, to deed to them a sufficient amount of land off of the east side of the north-west quarter of said section 22 to make, when added to lot 2, 40 acres. That in the following February, 1890, the defendant first learned that lot 2 contained but 26 1/2 acres of land, whereupon they went to plaintiff, and offered and demanded of him to deed them 10 acres more land off the east side of the north-west quarter of the north-west quarter of said section 22, or to rescind said contract; and demanded of him their money, viz., $1,000, and their note, for which they offered to deed said land back to plaintiff; and plaintiff refused to return to defendants their note and money, or any part thereof. All of the allegations in the answer were denied in the reply, and on these issues the cause was tried. Other matters were alleged in the answer, but their consideration is not necessary to the determination of this cause. Two statements of fact came up with the record, but this court can only consider the statement certified to by the trial judge. Both plaintiff and defendant testified that it was the intention to convey 40 acres of land; the real contention being whether or not 40 acres of land had really been conveyed. There seems little, if any, doubt from the testimony that lot 2, instead of containing 36 1/2 acres, actually contained only 26 1/2 acres.

Several instructions were presented and requested by defendants which, we think, correctly stated the law; but, as the reverse of such instructions was given by the court, we will notice it. Among other instructions the court gave the following: "If you should find that as a matter of fact said plaintiff did represent said tract to contain 36.50 acres when as a matter of fact it only...