Meyer v. Maxey
| Decision Date | 07 July 1916 |
| Docket Number | 13249. |
| Citation | 92 Wash. 73,158 P. 995 |
| Court | Washington Supreme Court |
| Parties | MEYER et ux. v. MAXEY et al. |
Department 1. Appeal from Superior Court, King County; R. H. Back Judge.
Action by John Meyer and wife against Rebecca C. Maxey and husband. Judgment for plaintiffs, and defendants appeal. Reversed and remanded, with directions to dismiss.
Carkeek & McDonald of Seattle, for appellants.
Nicholas Schmitt, of Seattle, for respondents.
Action to rescind an exchange of real estate and for damages. In the fall of 1913 all of the parties resided in Seattle, but were not acquainted. Plaintiffs owned two acres of land within the limits of that city which they desired to exchange for a farm. Defendant Rebecca C. Maxey owned as her separate property a large tract of land near Prairie City, in Grant county, Or., which she had listed for sale with one Stewart a member of a firm of real estate brokers in Seattle. Plaintiffs learned of this through another real estate agent who took them to Stewart's office in the hope of making an exchange. Pursuant to an appointment then made, plaintiffs met Mrs. Maxey in Stewart's office in November or December, 1913, and it was finally agreed that, if after examination of the respective lands both parties were satisfied, plaintiffs should select and take 160 acres of defendant's land at a valuation of $16,000 in exchange for their two acres at a valuation of $10,000 and their promissory note for $6,000 to be secured by a mortgage upon the land taken by them. Plaintiffs' land was subject to a mortgage for $1,500, to offset which they assigned to defendant a note for a like amount secured by a mortgage on certain land in Lewis county, Wash. Defendant soon after examined the two acres, and was satisfied with it, but positively declined to make the trade unless Meyer would go to Oregon, examine the land, and investigate conditions for himself. John Meyer, Mrs. Maxey, and the agent Stewart all so testified.
Accordingly in December, 1913, the exact date not appearing, Meyer and Stewart went to Prairie City, Or., arriving there about 2 o'clock in the afternoon, and drove out that evening to look at the land. Next day Meyer expressed a wish to examine the land alone, and, accordingly, visited it alone, spending the entire day in his investigation. He testified that he also talked concerning the land that day for an hour or more with another man who had purchased from Mrs. Maxey a part of the same tract adjoining that which was selected by Meyer and stayed at his house that night, returning to Prairie City the next day. Stewart testified that plaintiff then expressed himself as well satisfied with the land and stated he would take the south 160 acres and that he was ready to return to Seattle. He also testified that he did not suggest or in any manner hasten Meyer's return to Seattle, nor interpose any kind of obstacle or objection to his making the fullest examination and investigation he might desire. Meyer and Stewart returned to Seattle, and neither defendant nor Stewart made any further overtures in the matter. Plaintiffs were not heard from until the expiration of about 10 days, when they appeared at Stewart's office and announced themselves as ready to close the deal on the terms outlined. Stewart then drew up a contract between the parties embodying those terms, and Meyer took it to his then attorney, Henry W. Lung, of Seattle, for examination, together with defendant's permit from the Oregon authorities for the appropriation of water for the land. Lung expressed himself as not satisfied with the agreement, in that it did not mention the water right, and thereupon redrew the contract in accordance with plaintiffs' request. Defendant at the same time delivered to Lung the abstract of title to the Oregon land for examination.
As a result of his examination of the title and water permit deeds were exchanged, and the deal was closed. The foregoing facts are not disputed. In March, 1914, plaintiff and his family moved to the Oregon land, and now claims that he then found that the land was in many particulars different from what it had been represented to him by Mrs. Maxey, and that it could not be irrigated because no ditch had been dug across an adjoining tract belonging to one Mulrick, and that no right of way for such a ditch had been acquired. He at once wrote to his attorney Lung in Seattle concerning the water, urging that the matter be straightened out. Lung took the matter up with Mrs. Maxey, who at once went to the land and with plaintiffs' knowledge and tacit consent, at an expense of some $425, secured a right of way and had a ditch dug across the Mulrick land so as to convey water from the source of supply onto the land here in question. In order to do this, she testified that she secured from the proper authorities of the state of Oregon an extension of time for appropriating the water, and that she did this at Meyer's request. Meyer denied having made this request, but it is undisputed that the permit was secured through his attorney, Henry W. Lung. After having secured this extension and constructed the necessary ditch, Mrs. Maxey returned to Seattle....
To continue reading
Request your trial