Ryckman v. Johnson
| Citation | 161 Wash. 568,297 P. 206 |
| Decision Date | 02 April 1931 |
| Docket Number | 22973. |
| Parties | RYCKMAN v. JOHNSON et al. |
| Court | United States State Supreme Court of Washington |
Department 1.
Appeal from Superior Court, Yakima County; Dolph Barnett, Judge.
Action by Minnie Ryckman against John P. Johnson and others. Judgment for plaintiff, and defendants appeal.
Reversed with directions.
N. K Buck and Grady & Velikanje, of Yakima, for appellants.
Snively & Bounds, of Yakima, for respondent.
This is an action to recover damages alleged to have been sustained by reason of false and fraudulent representations made to induce the exchange and purchase of real estate. The case was tried to a jury, which returned a verdict in favor of the plaintiff, and, after allowing a certain offset, a judgment thereon was entered, from which the defendants have appealed.
Respondent a widow, lived in Ballard, where she owned two lots upon which she had recently constructed a dwelling house. This property, subject to a mortgage, she was induced to exchange for a 40-acre farm in Yakima county belonging to the appellants.
The farm was subject to a mortgage, but in the trade was valued at $7,500, and after allowing for the respective mortgages the respondent took title to the farm and gave back a second mortgage for the balance of the purchase price amounting to $1,900.
This mortgage had been foreclosed prior to the trial below, resulting in a deficiency judgment against the respondent, which, at the time of the entry of the judgment in this case, amounted to $927.55. On motion of the appellants, the trial court allowed this amount as a set-off against the verdict of $3,000 returned by the jury, and entered a judgment against the appellants for the sum of $2,116.45.
It is argued by respondent that, by interposing this set-off and so far paying the verdict, the appellants have lost the right of appeal. Accepting respondent's contention that a set-off is in the nature of a cross-action, is separate and independent, and that is does not deny the plaintiff's cause of action, still we see no reason why, after denying the allegations of the plaintiff's complaint, this judgment, if it then existed, might not, by a separate and affirmative answer, have been pleaded as an offset. In other words, while an offset does not deny the plaintiff's cause of action, we can see no reason why it cannot be presented in conjunction with a denial, and, if the defense to the plaintiff's cause of action fails in whole or in part, then the offset, if established, would become effective. True, our statute, Rem. Comp. Stat. § 271, says, 'to entitle a defendant to a setoff he must set the same forth in his answer'; but, under our liberal rules, an answer may be amended at any time before judgment in order to do substantial justice; and, treating the action here taken as having that, effect, we see nothing in what was done which should, or does, prevent an appeal from the judgment as entered.
The complaint, among other things, alleged that the trading price of the farm was $7,500, and that its actual value at the time did not exceed $2,500. This latter allegation was denied by the answer. Respondent presented no evidence whatever from which a jury could say what was the value of the farm as it actually existed, or what its value would have been if it had been as represented. Edwards v. Powell, 121 Wash 598, 210 P. 7, 212 P. 163. True the conditions as to the soil and so forth were gone into fully, and there were some statements to the effect that no crop could be raised which would pay the cost of planting, care, and harvesting, plus taxes and water charges, and that the place was valueless for farming purposes. At the same time and from the same witnesses, generally speaking, it was made to appear that anywhere from 3 to 10 acres were not subject to the adverse conditions complained of, that considerable alfalfa hay was raised on the farm each year, and that 115 sacks of wheat were raised the first year [161 Wash. 571] and 90 sacks of wheat the second year, in addition to some other minor crops. There was also testimony indicating that the place might, be more valuable for a dairy farm than for cropping. Testimony was produced by the defense from which the jury might have found that the farm, if as represented, would have been worth anywhere from $6,000 to $7,000; but, unless we are to hold that the farm, with its substantial dwelling house and its crop-producing...
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