Hoke v. Stevens-Norton, Inc., STEVENS-NORTO
Decision Date | 01 November 1962 |
Docket Number | STEVENS-NORTO,INC,No. 36104,36104 |
Court | Washington Supreme Court |
Parties | William A. HOKE, Appellant, v., a Washington corporation, Respondent. |
John F. Raymond, Seattle, for appellant.
Burgunder, Flanders & Trolson, Seattle, for respondent.
This is an appeal by plaintiff from a judgment dismissing his action for rescission of a contract for sale to him of a second mortgage.
No error having been assigned to the trial court's findings of fact, such, perforce, became the established facts of the case. Fain v. Nelson, 57 Wash.2d 217, 356 P.2d 302. Our review is, therefore, limited to whether or not the facts as found support the trial court's conclusions of law and judgment. J. D. English Steel Co. v. Tacoma School Dist. No. 10, 57 Wash.2d 502, 358 P.2d 319.
The essential findings of the trial court are:
Supplemental Finding of Fact No. 1:
Supplemental Finding of Fact No. 2:
Finding of Fact No. 2: 'That thereafter and during the month of January, 1960, the defendant delivered to the plaintiff a note in the principal sum of $2,500.00 together with a deed and purchaser's assignment of real estate contract to secure payment thereof executed by James Holt and Lynette Holt, his wife, to the plaintiff.'
Finding of Fact No. 3:
Supplemental Finding of Fact No. 3:
From the foregoing findings of fact, the trial court concluded:
'That the plaintiff through an exercise of cominion over the real property hereinbefore feferred to, in making payment on the underlying real estate contract, and his failure to make a demand upon the defendant for rescission when he learned the true character of the securities sold to him, has waived any right to rescind or for damages.' Conclusion of Law No. 2.
It is to this conclusion that plaintiff assigns error.
Plaintiff contends that the circumstances as found by the trial court do not justify concluding, as a matter of law, that plaintiff waived his right to rescind the purchase agreement. With this contention we agree. However, waiver of the right to rescind is a matter of intent, and, absent compelling circumstances, presents a question of fact. Lawson v. Helmich, 20 Wash.2d 167, 146 P.2d 537, 151 A.L.R. 930; Fines v. West Side Implement Co., 56 Wash.2d 304, 352 P.2d 1018; Wickre v. Allen, 58 Wash.2d 770, 364 P.2d 911.
Although the trial court entered no designated finding of fact bearing upon the issue of intent to waive, conclusion of law No. 2 partakes of the nature of a finding of fact and may be treated as such. Coolidge v. Pierce County, 28 Wash. 95, 68 P. 391; 53 Am.Jur., Trial § 1138, p. 794; 89 C.J.S. Trial § 647, p. 487.
Treating conclusion of law No. 2 as a finding of fact, upon the issue of plaintiff's intent to waive his right to rescind, examination of the record, and finding of fact No. 3, reveals the following evidentiary and factual basis for the trial court's determination of waiver: P...
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...Miller Lumber Co. v. Holden, supra; Wygal v. Kilwein (1952), 41 Wash.2d 281, 248 P.2d 893), and conversely (Hoke v. Stevens-Norton, Inc. (1962), 160 Wash. Dec. 776, 375 P.2d 743; Coolidge v. County of Pierce (1902), 28 Wash. 95, 68 P. With the foregoing in mind, it seems to me that the disp......
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