Judish v. Rovig Lumber Co.

• Decision Date: 28 January 1924
• Docket Number: 18095.
• Court: Washington Supreme Court
• Parties: JUDISH v. ROVIG LUMBER CO.

222 P. 898

128 Wash. 287

JUDISH v. ROVIG LUMBER CO.

No. 18095.

Supreme Court of Washington

January 28, 1924

Department 2.

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

Action by William Judish against the Rovig Lumber Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Snively & Bounds, of Yakima, for appellant.

Guy O Shumate, J. C. Cheney, and Grady & Velikanje, all of Yakima for respondent.

BRIDGES J.

The complaint alleged that plaintiff bought a tractor of the defendant because of various alleged misrepresentations concerning it, and prays judgment for the amount of the purchase price. We will later herein discuss the nature of the case.

The plaintiff's proof strongly supported his allegations that the tractor was not according to the representations alleged to have been made and that it was in fact quite useless to him. By its affirmative answer, the defendant pleaded--and on the trial proved--that the tractor was sold under the usual conditional sales contract, and that the plaintiff gave to it two promissory notes representing the balance of the purchase price, and that when those notes became due and were not paid it brought suit on them against the plaintiff, recovered judgment, and that after execution was issued the plaintiff paid the amount of the judgment. The defendant alleged in its answer, and has at all times since claimed, that such a situation made the judgment in the first suit res judicata to the second. The trial court so found, instructed the jury to bring in a verdict for the defendant, and entered judgment thereon, dismissing the action.

Undoubtedly plaintiff's action was one for rescission rather than one for damages based upon fraud, misrepresentations, or breach of oral or written warranties concerning the tractor. In his complaint he alleges in detail the false and fraudulent representations made by the defendant concerning the tractor and that such representations were made knowing them to be false and with the sole purpose of inducing him to purchase the tractor; that he believed and relied on the representations made to him, and that he would not have made the purchase but for them, and that he had on various occasions tendered the tractor back to the defendant. These are the usual and essential allegations in an action for rescission on account of misrepresentations. The lower court held, and we think correctly, that the plaintiff's action was one for rescission.

In instructing the jury to bring in a verdict for the defendant the trial court very clearly stated the legal principles controlling under the facts of this case, as follows:

'This is an action prosecuted by the plaintiff to recover back from the defendant the amount of the purchase price of a Moline tractor on account of alleged false representations. * * * In the month of June, 1921 (after the sale of the tractor and long before the bringing of this action), the Rovig Lumber Company brought an action (against plaintiff) to recover the balance of the purchase price, which was evidenced by two promissory notes. That suit was brought in this court and judgment rendered upon the note for the face thereof against Mr. Judish, Mr. Judish not making any defense to that action. * * * That judgment became final and conclusive as to all matters which were, or might under the pleadings in that case have been, litigated in that action. * * * I shall now rest my decision upon the ground that this former judgment is res adjudicata. * * * The basic principle upon which the doctrine of res adjudicata rests is that parties ought not to be permitted to litigate the same actions more than once; that when a cause has been judicially tried and determined by a court of proper jurisdiction, or an opporunity given for such trial, the

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