Lyle v. Cunningham

• Decision Date: 29 April 1914
• Docket Number: 11,568.
• Citation: 140 P. 330,79 Wash. 420
• Parties: LYLE et al. v. CUNNINGHAM et ux.
• Court: Washington Supreme Court

140 P. 330

79 Wash. 420

LYLE et al. v. CUNNINGHAM et ux.

No. 11,568.

Supreme Court of Washington

April 29, 1914

Department 1. Appeal from Superior Court, Pierce County; C. M Easterday, Judge.

Action by J. T. S. Lyle and another against James Cunningham and wife. From a judgment for plaintiffs, defendants appeal. Affirmed.

Boyle Brockway & Boyle, of Tacoma, for appellants.

Bates Peer & Peterson and Sullivan & Christian, all of Tacoma, for respondents.

MAIN J.

The purpose of this action was to reform a real estate contract and for other relief. The facts are as follows: On the 14th day of December, 1909, the plaintiff J L. McMurray, purchased from the defendants the following described real estate: The N.E. 1/4 of the S.W. 1/4 of lot 7, section 20, township 20, range 4 E., W. M., containing 59.67 acres, according to the government survey. Also a strip of land 16 feet wide along the east side of lot 16 of said section and township used for a private road to the county road. The purchase price was $18,000, of which $9,000 was paid in cash. The remaining $9,000 was to be paid on or before five years from the date of the contract. Interest was to be charged upon the unpaid balance at the rate of 6 per cent. per annum, payable on or before December 15th of each year. Immediately thereafter McMurray went into possession of the land. On or about April 1, 1910, he caused the land to be surveyed. This survey showed that the tracts of land sold contained only 46.77 acres instead of 60 acres. After discovering this fact, McMurray entered upon negotiations with the defendant James Cunningham for the purpose of securing a settlement, but the parties could not agree upon an adjustment. On October 12, 1910, McMurray made an assignment of the contract to J. T. S. Lyle. Thereafter, and on January 6, 1913, an action was instituted in the name of Lyle as plaintiff. After the issues were formed, the cause came on for trial on March 20, 1913. The defendant at this time objected to the introduction of any evidence because the complaint did not state a cause of action; the reason being that the assignment pleaded from McMurray to Lyle only transferred the contract and not the right of action, if any, that McMurray had on account of fraudulent representations in inducing the sale. The court sustained the objection to the introduction of testimony for the reason given. The plaintiff thereupon asked leave to amend the complaint by adding McMurray's name as a party plaintiff, and setting out that the assignment to Lyle was as trustee only and carried no beneficial interest. To this the defendants objected. The court permitted the amendment, and continued the cause upon terms until the 7th day of April, 1913. At this time the cause was tried upon the issues formed. The plaintiffs claimed that the contract had been induced by fraudulent representations, and sought to have the amount of the purchase price abated in proportion to the deficiency in the quantity of land. In other words, that the contract be reformed so that the plaintiff would be required to pay for only 46.77 acres, the amount actually in the tracts purchased, instead of for 60 acres, the amount represented. The defendants denied the charge of fraud, and claimed affirmatively that the contract had been forfeited owing to the failure of McMurray to meet certain interest and tax payments as required by the contract. The evidence shows that the northern boundary of the tracts of land sold was the Puyallup river. This river, following an irregular course, caused the northern boundary of the land to be likewise irregular. At the time of the purchase it was represented by both the defendant James Cunningham and his agent that the tracts of land contained 60 acres. While McMurray was looking over the land with a view to purchasing it, in company with the agent and Cunningham, the latter pointed out that the northeast corner of the tract as shown by the government survey was about in the center of the river at that point. It was in fact about 600 feet north of this. The river, since the making of the government survey, had gradually changed its course, cutting into the land which was the subject of the sale. Cunningham stated at this time that there had been cut away at the northeast corner about half...