Pearson v. Gullans

• Decision Date: 10 August 1914
• Docket Number: 11875.
• Citation: 81 Wash. 57,142 P. 456
• Parties: PEARSON et ux. v. GULLANS et al.
• Court: Washington Supreme Court

142 P. 456

81 Wash. 57

PEARSON et ux. v. GULLANS et al.

No. 11875.

Supreme Court of Washington

August 10, 1914

Department 1. Appeal from Superior Court, Snohomish County; Ralph C Bell, Judge.

Suit by Carl W. Pearson and wife against Caroline Gullans and another. Decree for defendants, and complainants appeal. Affirmed.

Coleman Fogarty & Anderson, of Everett, for appellants.

Saunders & Nelson and C. A. Applegren, all of Seattle, for respondents.

CHADWICK J.

This action was begun by plaintiffs praying for a cancellation of a deed to property conveyed by the plaintiffs to the defendants in exchange for 360 acres of land in the state of Michigan, deeded by defendants to plaintiffs. The transaction took place in the month of February, 1912. Plaintiffs went upon the land on the 2d day of May and again on the 2d day of July. They had not seen the land at the time of the exchange and now contend that the facts with reference to it were fraudulently represented and concealed by the defendants. At the time of the transfer, plaintiffs executed a mortgage in favor of the defendants for the difference in the agreed value of the two properties. About July 1, 1912, plaintiffs gave an option to purchase the Michigan land. At the same time they telegraphed to the defendants that the land had been sold, and requested them to forward a release of the mortgage, which was done. This action was begun in October, 1912. The court, after a full hearing, held that the delay in bringing the suit to rescind, coupled with the fact that the defendants had treated the property as their own and had negotiated for its sale, was a bar to a rescission.

The first error complained of is that the court denied a continuance after giving respondents leave to amend their answer upon the trial. The answer, after admitting the exchange, denied the fraudulent representations. The amendment pleaded the fact that appellants had discovered all of the facts relied on as early as May 2, 1912; that after they had discovered such facts they had treated the land as their own, offering it for sale for their own benefit. This was not error for several reasons. The amendment pleaded facts within the knowledge of the appellants, and which they should have been prepared to meet under the general issue, for the very essence of a complaint for a rescission is that the contract has not been affirmed.

Appellants say if the trial court had granted a continuance they 'possibly' would have been able to obtain testimony to show why the party who held the option refused to purchase the land, and would 'probably' have been able to produce a copy of the telegram and other documentary evidence. The reason why the land was rejected by the option holder and the form of the telegram could not have been material. The fact of the option and the release were the ultimate facts. But, granting that this testimony was material and not cumulative, appellants might have made a showing of prejudice upon a motion for a new trial. We find nothing in the record to indicate that this was done. It does not appear upon the whole record that appellants were prejudiced in any way by the amendment.

It is also complained that the amendment should have been more definite and certain. We find no merit in this contention. It was sufficient to apprise appellants of the defense relied on. The facts pleaded being within their knowledge, and, as it transpired, were proved in the main by calling one of them to the stand.

It is also complained that the court excluded evidence as to an entire conversation, having admitted a part of it. There was no prejudice, inasmuch as...