Horowitz v. Kuehl

• Decision Date: 08 September 1921
• Docket Number: 16207.
• Citation: 117 Wash. 16,200 P. 570
• Parties: HOROWITZ v. KUEHL et al.
• Court: Washington Supreme Court

200 P. 570

117 Wash. 16

HOROWITZ v. KUEHL et al.

No. 16207.

Supreme Court of Washington

September 8, 1921

Department 1.

Appeal from Superior Court, King County; King Dykeman, Judge.

Action by Herman A. Horowitz against H. A. Kuehl and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Mackintosh J., dissenting.

Winter S. Martin and Ralph H. Higgins, both of Seattle, for appellant.

Lundin & Barto, of Seattle, for respondents.

FULLERTON J.

The appellant, Horowitz, brought this action against the respondents, Kuehl, Wood, and Penny, to recover upon a promissory note, payable to himself or to his order, in the sum of $225. The respondents answered admitting the execution and delivery of the note and its nonpayment, and as an affirmative defense and cross-complaint alleged that the note, together with $100 in cash, was given to the appellant as the purchase price for the exclusive right to use the trade-name of 'National Musicians' Directory Co.' and the exclusive right to publish a musicians' directory in the states of Washington, Oregon Utah, Idaho, and California; that the rights granted were of no value; and that they were induced to enter into the contract because of false and fraudulent representations made to them by the appellant. After issue joined, the action was tried by the court sitting with a jury, and resulted in a verdict and judgment to the effect that the appellant take nothing upon his cause of action, and that the respondents recover the $100 paid.

The errors assigned on the appeal are 25 in number, but, as many of them suggest the same question in different forms only separate consideration of each of them is not required.

In the complaint the false and fraudulent representations inducing the sale were charged in the following language:

'That the said plaintiff represented to said defendants that the musicians' directory published by the National Musicians' Directory Company was the only musicians' directory published in the states of Washington, Oregon, Utah, Idaho, and California; that the National Musicians' Directory Company had a copyright, and no other musicians' directory could be published in said states; that the National Musicians' Directory was the only directory of musicians published in the United States; that the National Musicians' Directory then and there had such a high standing with the musicians in the Northwest that 95 per cent. of the musicians would renew their subscriptions without solicitation; that the plaintiff had made over $10,000 by selling the directory in Chicago alone, and that he had made $80,000 by publishing these directories.'

The appellant, on appearing in the cause in answer to the summons, moved to strike these allegations, and, after its motion had been overruled, interposed a general demurrer to the complaint, which was likewise overruled. The first of the errors assigned are based upon these rulings, the contention being that the representations charged are not actionable even though falsely and fraudulently made. The argument is that the statements are in part too remote, and are in part nothing more than what is commonly denominated 'trade talk' or 'seller's praise,' and relate in part to future events, not to an existing fact. None of these objections is, in our opinion, well taken. They related, for the greater part at least, to past and existing facts, and were of such a nature that they would have greatly added to the value of a thing purchased, if true. Particularly, objection is made to the allegation that the appellant had made more than $10,000 by selling the directory in Chicago alone, and had made $80,000 by publishing the directories. It may be that these statements were not intended to be understood literally, and it may be that the purchasers had no right to so understand them, but this is a very common way of...