Reilly v. Hopkins

• Decision Date: 13 March 1925
• Docket Number: 18834.
• Citation: 234 P. 13,133 Wash. 421
• Parties: REILLY et ux. v. HOPKINS et ux.
• Court: Washington Supreme Court

234 P. 13

133 Wash. 421

REILLY et ux. v. HOPKINS et ux.

No. 18834.

Supreme Court of Washington

March 13, 1925

Department 1.

Appeal from Superior Court, Spokane County; Lindsley, Judge.

Action by John Reilly and wife against S. B. Hopkins and wife. From a judgment of dismissal, plaintiffs appeal. Affirmed.

R. L Edmiston and Fred Williams, both of Spokane, for appellants.

O. P Moore, of Spokane, for respondents.

In Hume v. Indiana Nat. Life Ins. Co., 155 Ark. 466 245 S.W. 19, it is said:

MAIN J.

This action as originally brought was against S. B. Hopkins and wife and one W. D. Godefroy as defendants. The complaint sought rescission as against Hopkins and wife and damages for fraud against Godefroy. To the complaint a demurrer was interposed and sustained on the ground that there was an improper joinder of causes of action. Thereafter an amended complaint was filed against Hopkins and wife alone. After the issues were joined, the case came on for trial before the court without a jury. At the conclusion of the plaintiffs' evidence, the defendants moved for a dismissal, and this motion was sustained and a judgment of dismissal entered, from which the plaintiff's appeal.

The facts may be summarized as follows: The appellants were the owners of a large tract of land in Canada. The respondents were the owners of a tract of land in Stevens county which was under the Fruitland irrigation district and to a considerable extent had been set to orchard. The appellant Mr. Reilly had been a farmer in Eastern Washington for the past 45 years, though for the 4 years preceding the trial he had resided in the city of Spokane. He had had an extensive experience in farming, though he had had nothing to do with irrigated lands. The respondent S. B. Hopkins was a physician and surgeon and had actively practiced his profession in the city of Spokane for a number of years. Farming was a side issue with him. Some time in November, 1922, Mr. Reilly was introduced to Godefroy, and a talk took place between them relative to the exchange of his lands in Canada for those of the respondents in Stevens county. As a result, about the middle of that month the appellants, Godefroy, and one Morrison visited the Stevens county land. They looked it over somewhat, but Mr. Reilly states that owing to the price which was placed upon it he was not interested. He was encouraged to give a more thorough examination to the place than he was inclined to do. They were there for about two hours, and the property was looked over to some extent the weather being favorable for such investigation. They returned to Spokane, where all of the parties resided, and nothing was done about the matter for some time. Mr. Reilly occasionally visited Godefroy's office and had some talk with him. As a result, on February 21, 1923, an agreement was executed by which the appellants and the respondents agreed to exchange properties. Neither of the appellants until about two weeks prior to this time had had any talk with either of the respondents. Mr. Reilly testified that about two weeks before the contract was signed he and Godefroy visited Dr. Hopkins' office and there discussed the matter with him. Up to this time it cannot be found from the evidence that Godefroy was the agent of the respondents. At this conversation Mr. Reilly testified that Dr. Hopkins said that he could depend upon the representations of Godefroy, or words to that effect. Dr. Hopkins, called as a witness by the appellants, unequivocally denied any such statements. After the contract was signed, an abstract of the Stevens county land was delivered to the appellants. It was examined by a lawyer of Spokane of wellknown ability. The title was approved except as to an incidental matter or two which are not here material. After the abstracts were approved, deeds were exchanged.

Sometime during the month of May, 1923, the appellants sent their son and another person with certain equipment to Stevens county to take possession of the land. When they arrived there, they found in possession one George Presley, who declined to vacate, claiming that he would not surrender possession until a claim for services which he had had been satisfied. Thereafter an action was brought against him by agreement of the parties in the name of the appellants in this action, and it was understood that the expense thereof should be borne by Dr. Hopkins. After Presley was evicted, the appellants had possession of the property.

On May 11, 1923, the appellants gave notice to the respondents that they rescinded the exchange of properties. Thereafter the present action was brought and resulted as above stated. In the complaint there are a number of charges of fraud and the evidence took a wide range. Upon the trial, the testimony of Mr. Reilly, as will be hereinafter pointed out, reduced the charges of fraud to a single issue.

The appellants first complain of the ruling of the trial court in sustaining the demurrer to the original complaint. The action as against Dr. Hopkins and wife was one for rescission coupled with an effort to recover damages from Godefroy on the ground of fraud. So far as the action was one for rescission it disavowed the contract and sought recovery of the consideration which had passed. So far as it was an action for damages against Godefroy it affirmed the contract and sought recovery thereon. The law does not permit the disavowal and affirmance of a contract in the same complaint. In Hager v. Scott, 125 Wash. 635, 216 P. 840, it is said:

'Appellants might have brought either one of two actions: One for the rescission and recovery of the purchase price, and the other, a suit for damages because of the false representations and the deceit resulting from them, retaining the property. They have brought the first kind of action. It is entirely in equity. The other, to wit, retaining the property and suing for damages, would have been one in law. Since we have concluded that Mrs. Scott did not own or sell any interest in the property, the only action that was maintainable against her was one, not for rescission, but for deceit. It is true, as often stated by the books, that, in an action to rescind, a plaintiff may recover not only the purchase price paid, but also such damages as are incidental to the rescission, such as the loss plaintiffs may have suffered in undertaking to hold or operate the

...