Johnson v. Williams

• Decision Date: 02 April 1925
• Docket Number: 18714.
• Citation: 133 Wash. 613,234 P. 449
• Court: Washington Supreme Court
• Parties: JOHNSON v. WILLIAMS et ux.

234 P. 449

133 Wash. 613

JOHNSON v. WILLIAMS et ux.

No. 18714.

Supreme Court of Washington

April 2, 1925

Department 1.

Appeal from Superior Court, Yakima County; Hawkins, Judge.

Action by Iver Johnson against Wilber R. Williams and wife.Judgment for defendants, and plaintiff appeals.Affirmed.

Holden Shumate & Chency, of Yakima, for appellant.

Geo. F McAulay, of Yakima, for respondents.

PARKER J.

The plaintiff, Johnson, commenced this action in the superior court for Yakima county seeking recovery of a money judgment against the defendants, Williams and wife, for false representations alleged to have been made by their agent inducing him to enter into a contract for the purchase by him from them of a 5-acre tract of land, with improvements thereon, in that county.Recovery is sought measured by the amounts paid by Johnson upon the purchase price, taxes on the land, water assessments, spraying trees, and insurance on the house, aggregating $3,924.15.The case proceeded to trial as in action at law before the court sitting with a jury.At the conclusion of the introduction of the evidence in behalf of Johnson, on motion made in behalf of Williams and wife, the trial court withdrew the case from the jury, decided as a matter of law that the evidence was not sufficient to support any recovery by Johnson and rendered judgment of dismissal accordingly.From this disposition of the cause, Johnson has appealed to this court.

On February 4, 1920, Williams and wife, being then the owners of the land as their community property, Mr. Williams orally listed the land for sale with Coonse, Taylor & Bond, real estate agents in Yakima, authorizing them to find a purchaser.Mr. Johnson then orally gave them information as to the location and description of the land and the improvements thereon, consisting of a dwelling, sheds, fruit trees, etc., and authorized them to find a purchaser at a price of $7,500.Memorandum was accordingly made by them upon their records, but no writing was then signed by either Mr Williams or his wife.Soon thereafter J. R. Vincent, who, we shall assume, was a salesman and in the employ of Coonse Taylor & Bond, acting for them, found Johnson, a prospective purchaser, and showed him the property.Johnson, after examining the property, evidently with considerable care, on two different occasions, expressed a willingness to purchase it at the price asked.Thereupon Johnson paid to Coonse, Taylor and Bond $500 as earnest money, they giving him a receipt therefor stating therein tentatively the purpose of the payment and the terms of the proposed purchase.This receipt and tentative agreement concluded with these words:

'This agreement is made subject to the approval of the owner.'

Thereafter Mr. and Mrs. Williams indorsed their approval on this receipt and agreement, they not being present when it was signed by Vincent representing Coonse, Taylor & Bond and delivered to Johnson.Thereafter on February 17, 1920, there was duly executed by Mr. and Mrs. Williams and Johnson a formal contract for the sale of the property by them to Johnson, by the terms of which he then paid $2,000 in addition to the $500 already paid, making the down payment $2,500, and agreed to pay the balance of the $7,500 purchase price in deferred payments with interest at stipulated times, he to receive deed of conveyance upon so paying the balance of the purchase price.That sale contract contains a forfeiture clause commonly found in such contracts by which, upon default of Johnson in making payments as agreed, Williams and wife might declare a forfeiture of all his rights under the contract, including the portion of the purchase price paid by him without recourse to them for recovery of the same.Thereupon Mr. and Mrs. Williams moved off the place, surrendering possession thereof to Johnson.Some three years thereafter, on March 1, 1923, Johnson having remained and being then in possession under the contract and being then clearly in default in making payments as provided for by the terms of the contract, Mr. and Mrs. Williams gave him notice that, if payments be not made by him in accordance with the terms of the contract on or before April 2, 1923, they would elect to annul the contract and forfeit all his rights thereunder, including payments theretofore made by him upon the purchase price.

Soon thereafter Johnson moved off the place, and soon thereafter commenced this action seeking recovery as above noticed.

The theory upon which recovery is sought by Johnson of the portion of the purchase price paid by him with interest, the sums paid by him for taxes, water assessments, spraying of trees, and insurance on the house while he was in possession of the place under the contract, is, in substance, that he is entitled to such recovery because of false representations made to him by Vincent as salesman for Coonse, Taylor & Bond, and therefore as agent for Mr. and Mrs. Williams, as to the quality and earning power of the place as a fruit farm.As to what these alleged misrepresentations were, let us take Johnson's own story therefor.He testified as follows:

'Mr. J. R. Vincent took me out and showed me the place.He was at the office of Coonse, Taylor & Bond, and Mr. Coonse turned me over to him.* * * He told me it was a good commercial orchard.* * * The varieties of trees were good commercial varieties and it would bring me good returns; and he said that the place would pay for itself in three or four years, about four years, he said.* * * I asked him about the frost and other destructive elements and climatic conditions in general favorable to fruit raising out there, and he said it was safe from frost and other destructive elements and gave me assurance that there was no such a thing as crop failure. * * *

'Q.Now did you tell Mr. Vincent that you were a stranger in that community?A.Yes.

'Q.What did you say to Mr. Vincent about that?A.Well I told him I come out here from Minnesota and didn't know anything about the valley or this part of the country.

'Q.Did you say anything else to him as to what you wanted?A.Yes, I told him I wanted a small commercial orchard tract with a house on it.

'Q.Now was anything said about the price or value of this land, and if so what was it?A.Yes.He said it was a good buy at that price, $7,500.

'Q.Now you may state whether or not these statements were all made to you before you entered into this contract?A.Yes, sir.

'Q.Did you believe them?A.I did.

'Q.Would you have bought this property for the price it was sold to you except for these statements?A.No. I would not have bought it at half the price if I had known the facts.'

These are the only representations upon which recovery is sought.For argument's sake, we shall assume that the jury would have been warranted in believing that they were untrue, that they were relied upon by Johnson and were the inducing cause of his entering into the formal contract of purchase with Mr. and Mrs. Williams.It is not claimed that Mr. of Mrs. Williams heard Vincent make any of these alleged...