Kalmans v. Powles

• Decision Date: 06 September 1922
• Docket Number: 17199.
• Citation: 121 Wash. 203,209 P. 5
• Court: Washington Supreme Court
• Parties: KALMANS et al. v. POWLES et al.

209 P. 5

121 Wash. 203

KALMANS et al. v. POWLES et al.

No. 17199.

Supreme Court of Washington

September 6, 1922

Department 1.

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

Action by C. H. Kalmans and another against Mary J. Powles and others. Judgment for plaintiffs, and defendants appeal. Reversed, with directions to dismiss.

James Kiefer, of Seattle, for appellants.

H. E Foster, of Seattle, for respondents.

TOLMAN J.

Respondents instituted this action to recover $500 paid by them as earnest money upon the purchase of certain real estate. They alleged, and introduced testimony tending to prove, that three distinct misrepresentations were made to induce them to pay the money, and accept an earnest-money receipt in the nature of a preliminary contract for the purchase of the property: First, that the property to be purchased was free and clear of all liens and incumbrances, when in fact it was subject to a mortgage for $7,500, bearing interest at the rate of 6 1/2 per cent. per annum before maturity, and 12 per cent. after maturity, which, according to the record, was overdue; second, that the general taxes on the property were $290 per year, while in truth, as appears from the public record, the taxes exceeded $540 per annum; and third, that if respondents purchased the property they would be given the first right to buy the household furniture and furnishings then in the residence located thereon, but that upon payment of the earnest money the household goods were immediately removed, and respondents were denied any right or opportunity to purchase. The trial court expressly refused to make any findings on the first and last mentioned issues, but found for respondents in the matter of the taxes, and entered judgment against appellants for the full sum demanded, from which judgment this appeal is prosecuted.

The evidence was in direct conflict upon all material points, and as we cannot say that it preponderated against the finding of the trial court, to the effect that misrepresentations as to taxes were made, we accept that finding as true; but does that support the judgment? In the case of Washington Central Imp. Co. v. Newlands, 11 Wash. 212, 39 P. 366 this court said:

'Conceding that these representations were false, and conceding that the purchaser relied upon them, there is not yet enough shown, it seems to us, in this answer to give the defendant relief. There is no fiduciary relation between the seller and the buyer alleged. It is not alleged that the buyer was in such a position that he was unable to make an investigation concerning the truth or falsity of these alleged representations.'

And the same rule was enunciated in West Seattle Land &amp Improvement Co. v. Herren, 16 Wash. 665, 48 P. 341. In Fischer v. Hillman, 68 Wash. 222, 122 Pac 1016, 39 L. R. A. (N. S.) 1140, the late Mr. Justice Dunbar, who wrote all three of the opinions here referred to, speaking for the court, said:

'It is earnestly contended by appellants that the demurrers to these complaints should have been sustained, that the plaintiff was in a position to ascertain the

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