Marr v. Cook, 34135

• Decision Date: 29 November 1957
• Docket Number: No. 34135,34135
• Parties: O. E. MARR and Alma Marr, husband and wife, Respondents, v. Ernest H. COOK and Marcella Cook, husband and wife, Appellants.
• Court: Washington Supreme Court

Page 338

51 Wn.2d 338

318 P.2d 613

O. E. MARR and Alma Marr, husband and wife, Respondents, v. Ernest H. COOK and Marcella Cook, husband and wife, Appellants.

No. 34135.

Supreme Court of Washington, Department 2.

Nov. 29, 1957.

Sanford Clement, Vancouver, for appellants.

Fred M. Bond, South Bend, James E. Duree, Raymond, for respondents.

HILL, Chief Justice.

Fraud is here established by unusually clear, cogent, and convincing evidence. The measure and the proof of damages present the only difficulties of any consequence.

The defendants, Ernest H. Cook and his wife, owned and operated a nursing home, which they sold for $25,000 to the plaintiffs, O. E. Marr and his wife. The contract of sale contained the express, and false, representation by the sellers

'* * * that said Nursing Home meets all of the requirements of the State of Washington presently in existence for the operation of such Nursing Home business.'

Some six months after the purchasers had gone into possession of the property, they discovered that three of the four walls in many of the rooms in the building were covered with masonite, whereas state fire regulations for nursing homes required that they be covered with plaster or plasterboard. The purchasers made the changes necessary to meet the state's requirements, did some additional remodeling, and then commenced this action to recover damages for the fraud.

The jury verdict was for $7,500, and a judgment was entered in that amount. The sellers appealed.

Respondents have moved to strike the appellants' brief for failure to comply with Rule on Appeal 42, and, particularly, 42(5), 34A Wash.2d 44. While the motion might well be granted, we have decided to dispose of this appeal on the merits and refer to this motion to strike the brief

"* * * merely for the purpose of suggesting to the members of the bar generally that compliance with our rules is important.' Ericksen v. Edmonds School District, 1942, 13 Wash.2d 398, 408, 125 P.2d 275.' Rettinger v. Bresnahan, 1953, 42 Wash.2d 631, 257 P.2d 633.

It is unnecessary to discuss again all of the elements which a purchaser must prove to be entitled to recover in an action for fraud in connection with a sale. They have been set out in almost identical form in a long line of cases beginning with Webster v. L. Romano Engineering Corp., 1934, 178 Wash. 118, 34 P.2d 428, and repeated as recently as Swanson v. Solomon, 1957, Wash., 314 P.2d 655. The representation that the nursing home 'meets all of the requirements of the State of Washington presently in existence for the operation of such Nursing Home business,' was demonstrably false. That the purchasers relied upon the representation, and were entitled so to do, is established beyond cavil.

The sellers attempted to show that they made their misrepresentation in reliance on the license, which had been issued to them by the state, and contended further they did not know of the requirement that walls be covered with plaster or plasterboard. They complained because the court instructed the jury that representations to be actionable must have been known by the sellers to be false, or have been made 'recklessly without any knowledge of their truth and as a positive assertion.'

The instruction was not erroneous. A person cannot make a positive representation, which is false, and defeat recovery because he did not know it was false, if he made the representation recklessly and carelessly without knowing whether it was true or false. Swanson v. Solomon, supra. Holland Furnace Co. v. Korth, 1953, 43 Wash.2d 618, 262 P.2d 772, 41 A.L.R.2d 1166.

Moreover, it is our view that actual knowledge of the falsity of their representations was established by clear, cogent, and convincing evidence, as was every other element of actionable fraud; and the assignment of error, predicated on the trial court's failure to grant a nonsuit, is without merit.

Two assignments of error are concerned with the admission of letters written to the purchasers: one by the deputy state fire marshal eight months after the sale of the nursing home, and the other by the head of the licensing section of the state department of health seven months after the sale. These letters stated in substance that if the true condition of the building had been ascertained in the inspection by state officials, the license would not have been issued, and that, in fact, the building at the time of sale did not meet existing state requirements. The letters were admissible as establishing notice to the purchasers that their building did not conform to state regulations. The fact of nonconformance was established by other competent evidence, and the sellers could in no event have been prejudiced by the admission of these letters.

Three assignments of error had to do with the admission, over objection, of a specification, a blue print, and an estimate, all of which had been prepared by a construction engineer.

This evidence was not objectionable for the reasons assigned by the sellers in the objections made, i. e., that they were based on an alleged program of the purchasers to expand the facilities of the home. The testimony discloses that the exhibits were related to the work necessary to make the nursing home, as it then existed, conform to the state's requirements. We have insisted that unless the specific ground of objection to the admission of evidence is a proper ground, the trial court commits no error in overruling it. White v. Fenner, 1943, 16 Wash.2d 226, 133 P.2d 270.

The sellers did make proper objection to two items in the estimate.

The estimate, exclusive of taxes, was for items totalling $9,427.25, supposedly necessary to make the building conform to state requirements. One item of $2,500 (for loss due to vacancy and inconvenience during the work) was based on hearsay; and one item for $550 (a new fire alarm system) was never established as being necessary to meet state requirements. These two items should have been stricken from the estimate, and the taxes recomputed. The purchasers' attorney agreed, before the jury, that the item of $2,500 would have to be established by Mr. Marr's testimony. The jury obviously did not bring in a verdict based on this estimate. We are not persuaded that the admission of the estimate was prejudicial, except to the extent hereinafter indicated.

Exhibit 12 is the bill of the electrical contractor for the work which he did, supposedly for the purpose of making the building conform to the state's regulations. This was the only evidence presented to the jury of actual expenditures. It contained an item of $450 for the item to which we have just referred, a new fire alarm system. It will be remembered that this was listed in the estimate at $550.

We are satisfied that there was no evidence to take this expenditure of $450 to the jury, as being necessary to make the property conform to the representations of the sellers. It should have been stricken from the bill, and it was error to admit it in evidence over the sellers' objection. We are not convinced that this error was prejudicial for reasons hereafter discussed.

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