Karr v. Mahaffay

• Decision Date: 23 August 1926
• Docket Number: 19919.
• Citation: 248 P. 801,140 Wash. 236
• Parties: KARR v. MAHAFFAY et al.
• Court: Washington Supreme Court

248 P. 801

140 Wash. 236

KARR v. MAHAFFAY et al.

No. 19919.

Supreme Court of Washington

August 23, 1926

Department 2.

Appeal from Superior Court, Pierce County; Card, Judge.

Action by Blanche I. Karr against R. E. Mahaffay and others. From a judgment notwithstanding the verdict and dismissing the action, plaintiff appeals. Reversed and remanded, with directions.

Ellis Fletcher & Evans, of Tacoma, and Farrell, Meier & Hess, of Seattle, for appellant.

Lyle Henderson & Carnahan, of Tacoma, for respondents.

MAIN J.

The plaintiff, after rescinding on the ground of fraud a contract to purchase land, brought this action to recover the consideration paid. The cause was tried to the court and a jury, and resulted in a verdict in favor of the plaintiff in the sum of $23,538.87. The defendants made a motion for judgment notwithstanding the verdict and in the alternative for a new trial. The court sustained the former motion and entered a judgment dismissing the action, from which the plaintiff appeals.

The facts which the jury had a right to find from the evidence introduced in the appellant's behalf are these: The appellant, in November, 1922, became acquainted with one Jay Du Mas, and this acquaintance ripened into an engagement of marriage in May, 1923. About the 1st of August, 1923, Du Mas having learned that the appellant had several thousand dollars in money and a contract upon land which she had sold in Yakima county with a balance due upon it of $20,000, began to advise that the appellant exchange her contract for a large tract of land 3 or 4 miles from Puyallup, which he stated could be purchased for $50 an acre, and that he would plat and sell it for $100. He stated that the land was owned by a wealthy elderly gentleman who was contemplating an early trip to Europe. The appellant finally yielded to the persuasion of Du Mas and consented to dispose of her contract and acquire the Puyallup land.

Du Mas then went to R. E. Mahaffay & Co., of which the respondent R E. Mahaffay was president (who will be referred to hereinafter as though he was the only party to the action), and met one Harry C. Johns, who had charge of the real estate business of the company. Du Mas was looking for a large tract of cheap land. Johns did not have such land listed, and interviewed one A. H. Barnhisel, who was also engaged in the real estate business. Barnhisel had a tract of land consisting of approximately 700 acres, which he finally agreed to sell for $19 an acre, with a cash payment of $500. The respondent, Barnhisel, Johns, and Du Mas met one evening in the office of R. E. Mahaffay & Co. At this time the terms of the contract were talked over in the respondent's presence. After the details were agreed upon Barnhisel drew the contract. This contract was dated August 31, 1923, and was between Barnhisel and wife and R. E. Mahaffay, the respondent. It was acknowledged on the day it bore date, to wit, August 31, 1923. The contract provides for the sale of the land at $19 per acre, with a cash payment of $500. It also provides that the purchaser shall take care of a $7,700 mortgage then upon the land.

On August 30, the day before this contract was signed, appellant had signed a contract for the purchase of the land which was presented to her in Seattle by Du Mas. After signing the contract at the instance of Du Mas, she came to Tacoma for the purpose, as she thought, of closing the transaction. The contract which she signed was blank as to the seller, and was not signed by any other person at the time she signed it. When she got to Tacoma, Du Mas had her go to a hotel to wait while he went out to finish up the transaction. In about an hour he returned and stated that the contract would not be ready for three or four days. In a few days the appellant received the contract, and at that time R. E. Mahaffay's name was written in as the party selling, and he had signed and acknowledged the same on the 31st day of August, 1923. By this contract the appellant was purchasing the same land which was covered by the other contract for the sum of $38,500, approximately $50 per acre. The appellant assumed the $7,700 mortgage as a part of the purchase price. Barnhisel testified that R. E. Mahaffay & Co. were to receive a commission of 5 per cent. on the sale of the land by him. Du Mas prior to the execution of the contracts had taken the appellant to show her the land which she was to purchase, but he did not show her the land covered by the contracts. In September following, the engagement of marriage between Du Mas and the appellant was terminated.

About October 1, the appellant, being somewhat uneasy about the transaction, went to Tacoma, visited the office of R. E. Mahaffay & Co., and had a talk with respondent. Up to this time these parties had not met. At this interview the respondent told the appellant that he owned the land which she had purchased, and that he was buying it on contract. He showed her a deed which he had in his possession which was made out to Barnhisel from West and Wheeler. He did not show her the contract by which he was purchasing the land from Barnhisel at $19 per acre. The reason for this is obvious. About November 1, 1923, the appellant, having been notified by Du Mas that 20 acres of the land had been sold, went to the office of R. E. Mahaffay & Co. and there again met the respondent, who told her that 20 acres of the land had been sold and $1,000 received. He gave appellant a statement signed by himself, in which he listed the 20 acres sold and the price, accounted for the payment of $500 on the contract, interest of $58.87, and payment on the mortgage of $240, leaving a balance due the respondent of $201.13. For this he gave her a check, and took her receipt in words and figures as follows:

'10/30/19

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