Lawson v. Vernon

• Decision Date: 20 April 1905
• Citation: 38 Wash. 422,80 P. 559
• Parties: LAWSON et ux. v. VERNON et al.
• Court: Washington Supreme Court

80 P. 559

38 Wash. 422

LAWSON et ux. v. VERNON et al.

Supreme Court of Washington

April 20, 1905

Appeal from Superior Court, King County; O. V. Linn, Judge.

Action by John Lawson and wife against W. H. Vernon and another doing business as W. H. Vernon. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

George E. de Steiguer, for appellants.

J. P Wall and Root, Palmer & Brown, for respondents.

FULLERTON J.

The record discloses that in the early part of July, 1900, the appellants, who were real estate dealers in the city of Ballard, approached the respondent John Lawson, and proffered to sell to him four certain lots, then owned by the appellant Lee, known and described as lots 26, 27, 28, and 29 in block 9 in Ballard Park Addition to the city of Ballard. The lots were on the outskirts of the city of Ballard, in an unimproved part of the city, and, together with the surrounding property, were overgrown with trees and brush and overlaid with logs, so that the stakes originally put in to mark the lots and blocks could not be found. During the negotiations between the parties the parties the appellant Vernon took the respondent John Lawson to the place near where the lots were located, and pointed out to the respondent certain lots which he said were the lots of his co-appellant and the lots they purposed selling, but which in fact were lots owned by other persons, and some 160 feet west of the lots owned by Lee. On returning the respondent Lawson agreed to purchase the lots, and thereupon the appellant Lee executed a deed to him for the lots above described, assuring him that the lots pointed out to him by Vernon were the lots described in the deed. The deed was executed and delivered some time in July, 1900, and a few weeks thereafter the respondents entered into possession of the lots pointed out by Vernon, and between that time and the early part of the year 1903 cleared and fenced the same, dug a well thereon, set out thereon a number of fruit trees, and commenced the erection of a dwelling house. About the time they commenced building the house some of their neighbors told them that they were not upon the lots their deed described. The respondents thereupon took steps to ascertain the true location of the lots purchased by them, and, finding they were upon other lots, they entered upon the lots actually conveyed, abandoning the lots first settled upon, together with the improvements they had placed on the same. There was evidence tending to show that the lots actually conveyed lay better and were more valuable than the lots the respondents claim were pointed out to them. There was testimony on the part of the appellants to the effect that the lots sold were the lots actually pointed out by Vernon; and the bill of exceptions, which, however, does not purport to contain all of the evidence, fails to show any motive on the part of appellants for pointing out other lots than the ones they had for sale and actually sold. It fails to show also what knowledge Vernon had of the location of the lots at the time he undertook to point them out to the respondents.

The appellants requested the court to give the jury the following instructions: '(1) The claim of the plaintiffs in this case is that they purchased from the defendants certain real estate described in the complaint, but that the defendants showed certain other property to the plaintiffs, and falsely, deceitfully, and fraudulently informed the plaintiffs that such other lots were in fact the lots which plaintiffs were about to buy. Before you can find for the plaintiffs in this action, you must find that in fact such representations were made, that they were false, that they were known by the defendants to be false, or were not made in good faith by the defendants, and that the plaintiffs relied upon the same. (2) If you find that representations as to the location of the property were made which were not correct, but that the defendants were acting in good faith in making such representations, then you must find a verdict for the defendants.' '(5) If you find that the location of the lots claimed to have been sold by defendants to the plaintiffs could have been readily ascertained by the plaintiffs, and that any mistake as to their location arose from the failure of the plaintiffs to avail themselves of any means readily accessible to them, then they cannot recover from the defendants in this action. (6) The court instructs you that if the plaintiffs are entitled to recover anything from the defendants in this action the measure of damage and the amount of recovery to be determined by your verdict is the difference in value between the lots of land which plaintiffs claimed that the defendants pointed out to the plaintiffs as the land they were buying and the land actually described in the deed given to the plaintiffs. If the land so described in the deed was more valuable than the land pointed out, and if other facts exist entitling the plaintiffs to a verdict, then the amount of your verdict should be the amount in which the value of the land so pointed out exceeds the land actually described in the deed. On the other hand, if the land described in the deed was of the same value as the land so alleged to have been pointed out to the plaintiffs, or was more valuable than the land so pointed out to the plaintiffs, then the plaintiffs would not be damaged by any mistake or misrepresentation as to the location of said land, and you should render a verdict for the defendants herein. (7) If you render a verdict for the plaintiffs herein, you cannot take into consideration, in fixing the amount of such verdict, any work done or improvements made upon the property which plaintiffs claim was pointed out to them by the defendants, as any such work or improvements form too remote or speculative an element to be taken into consideration in a case of this kind.'

The court refused to give the requested instructions, but gave the following: '(1) If you believe from the evidence that the defendants, or either of them, prior to the sale of the property, pointed out to the plaintiffs, or to either one of them, certain lands other than the lands described in the deed given by the defendants to the plaintiffs, and that the plaintiffs relied upon the information thus given and went to trouble and expense and work improving the lands pointed out to them, and which they believed to be the property which they bought, then your verdict must be for the plaintiffs, and in such sum as you believe they were damaged, if they suffered any damage. (2) If you find from the evidence, as a matter of fact, that prior to the date of sale the defendant Vernon pointed out certain lands to one of the plaintiffs, which were not as a matter of fact the lots conveyed, and that plaintiffs believed they were the same lands, and were told by the said Vernon that they were the same lands, that plaintiffs are entitled to recover any damages which they sustained by reason of such misinformation, even if the said Vernon did not purposely mislead them; in other words, if the defendant Vernon made a mistake and pointed out the wrong property even if his mistake were unintentional, yet he and his partner must be held for any pecuniary damage said mistake may have caused the plaintiff. (3) The court permitted certain evidence to be introduced as to the nature and value of the property which was actually described in the deed, and upon which plaintiffs were living. That evidence was not admitted for the purpose of proving in this suit any counterclaim or any justification, but merely upon the credibility of witnesses and the likelihood of certain transactions having or not having taken place. If you find that the defendants, or either of them, prior to the sale of the property, told the plaintiffs they would sell him the lots which he subsequently improved, and pointed out said lots to him, and that plaintiffs, acting upon such representations and relying thereon, improved the said property, they are entitled to recover damages, regardless of the nature or value of the lots described in the deeds, and...