Samson v. Beale

• Decision Date: 10 March 1902
• Citation: 68 P. 180,27 Wash. 557
• Parties: SAMSON v. BEALE et al.
• Court: Washington Supreme Court

68 P. 180

27 Wash. 557

SAMSON v. BEALE et al.

Supreme Court of Washington

March 10, 1902

Appeal from superior court, Pierce county; W. H. Snell, Judge.

Action by Swan Samson against Margaret K. C. Beale and Joseph Beale. From a judgment for plaintiff, defendants appeal. Reversed.

Walter Loveday and Remington & Reynolds, for appellants.

Allyn &amp Allyn, for respondent.

HADLEY J.

On and prior to October 1, 1900, the appellants were the owners of certain real estate in the city of Tacoma, upon which a building was then standing. Respondent brought this suit against appellants, and alleged, in substance, that appellants are nonresidents of said city, and that they are and for a long time have been, represented in said city by Purdon & Stacy and G. F. Stacy, as agents; that on or about the late first mentioned said Purdon & Stacy and said Stacy represented themselves as such agents as to all things relative to the said building and property, and particularly as to all matters and things connected with the sale of the same; that on said date respondent was proposing to buy said property, and, for the purpose of looking it over, was accompanied by said Stacy as the agent and representative of appellants, the owners, and that he had full authority to sell the same and to represent appellants in all things connected therewith; that appellants, through their said agent Stacy, represented to respondent that there was a solid brick foundation wall, in good condition, all around the main structure, and also under the partition walls inside, which had cost more than $1,000, had been placed there a short time before, and was complete and sufficient to last for years; that appellants, through their said agent, as evidence of the above-stated facts, made certain openings in the building, showing brickwork as done and thereby caused respondent to be satisfied as to said representations, the truth of which could not be fully otherwise determined without injury to said building; that thereupon respondent proposed to buy said property, and offered to pay therefor the sum of $6,500 cash, and later, being furthermore fully satisfied, by a showing of specifications and plans as to said foundation, that the same was new and in first-class condition, made again his offer of $6,500, and also agreed to pay commissions of the selling agents; that said last-mentioned offer was accepted, and the property was transferred to respondent, who thereupon paid for the same the sum of $6,825; that respondent relied upon the statements and representations concerning the foundation wall, and was induced thereby not to make more full and complete examination than he did make or could make without injury to the building, and was further thereby induced to offer and pay the amount aforesaid. It is further alleged that some time after respondent came into possession and control of the premises, he discovered there was something wrong with the foundation of the building, and he thereupon had the floors torn up, when he ascertained that the statements and representations aforesaid were untrue, in this: that there was a foundation wall on the north side of the building, but not around the entire building; that a large pier had been built under the southeast corner, and another under about the center of the building, certain parts of all of which had been shown him as aforesaid as proof that foundation walls existed around and under the whole of the building. It is alleged that said representations were known by appellants and their said agent to be false, and that respondent has been damaged in the sum of $1,200; that he was compelled to place a good and sufficient foundation under the building, which of right should have been there, under the statements and representations of appellants, and has been compelled to expend therefor a sum in excess of $1,000, and has incurred other incidental expense, in all amounting to $1,200, for which sum he asks judgment. A demurrer was interposed to the complaint, which was overruled, and appellants excepted to said ruling. Thereupon the defendants answered the complaint. The answer admits that Purdon & Stacy were the agents of appellants, with limited powers, viz., with power to collect rents, and obtain and submit offers to appellants for the purchase of the property mentioned. But all other allegations of the complaint as to agency are denied. It is further admitted that said property was shown to respondent by said Stacy, and it is alleged that respondent was by said Stacy given every opportunity to inspect the same. It is further alleged that respondent well knew that Purdon & Stacy were the agents of appellants for the purpose of collecting rents and remitting collections to appellants, and that, as to a sale of the property, the only power or authority conferred upon said agents was to obtain and forward to appellants offers to purchase the same, and to collect and forward the purchase price. It is further alleged that respondent, through said agents, submitted an offer to appellants to purchase said property, agreeing to pay therefor the sum of $6,500 in cash if said offer should be accepted by appellants, and at the same time, as an evidence of good faith, respondent deposited with said agents the sum of $50, taking a receipt therefor, which stated that the offer was conditioned upon the title being found clear; that said offer was accepted by appellants subject to the payment by respondent of all agents' commissions, which respondent thereupon agreed to pay, and did pay at once; that subsequently the title was found good, a deed from appellants to respondent was delivered, the balance of the purchase price was paid by respondent, and no further or different negotiations were had between the parties; that no representations were made to respondent by appellants, or by any one authorized to represent them; that, prior to the offer to purchase and the payment of the purchase price, respondent made a full and complete inspection and examination of said property; that said premises and building and its foundation were offered to respondent for his inspection and its exact condition was easily ascertainable and discoverable, and was in fact ascertained and discovered by him before he offered to purchase, or before he purchased, the property. It is further alleged that after respondent expressed dissatisfaction with his bargain, on account of alleged defects in the said foundation, the appellants offered to rescind said sale, and to return to respondent all the money theretofore paid by him on said purchase, and leave him in the same situation he was in before he bought said property, but which offer respondent declined. Respondent moved to strike from the answer all the allegations concerning the offer of appellants to rescind the sale, which motion was sustained, and exception to such ruling was duly taken by appellants. The cause was tried before a jury, resulting in a verdict for respondent in the sum of $700. The motion for a new trial interposed by appellants was denied, and judgment thereafter entered against appellants for $700 and costs. From said judgment this appeal was taken.

It is assigned as error that the court overruled the demurrer to the complaint, for the reason that the complaint, upon its face, shows only authority in the agents to sell, and that no authority to make the representations as alleged is shown. The complaint, however, alleges that the agents represented themselves as agents 'as to all things relative to the building * * * and said property, and particularly as to all matters and things connected with the sale of the same as hereinafter set out.' Again, it is alleged that the agents 'had full authority to sell the same, and to represent said defendants in all things connected therewith.' These allegations are followed by others concerning the representations, which representations may be said to be referred to by the words 'hereinafter set out,' and 'in all things connected therewith,' in the quotations above. Combining these with the further averment that the representations were made by appellants to respondent through their said agents, we think the averments of the complaint sufficiently strong to withstand a demurrer.

It is also assigned as error that the court granted the motion to strike the allegations from the answer concerning an offer to rescind the sale and refund to respondent the money he had paid. We think this was not error. 'The plaintiffs were not required, after the deed had been executed, to accept the offer of the defendant to refund the money received and declare the contract off. They had the option to allow the sale to stand, and, by an action at law, to recover for the injury sustained. The latter course is pursued, and the party liable for the fraudulent representations cannot object.' Lynch v. Trust Co. (C. C.) 18 F. 486, 489, 490. The rule of the above case was approved and followed by this court in Sears v. Stinson, 3 Wash. St. 615, 29 P 205. Ordinarily it is the injured party who seeks a rescission. He may pursue either the equitable remedy of rescission, and offer to place the other party in statu quo by tendering back the benefits of the contract, or he may retain the benefits of the contract and bring his action at law for his damages. In Pronger v. Bank, 20 Wash. 618, 626, 56 P. 391, 393, this court said: 'The action for damages is a law action for a money judgment, requires no tender, and may be brought by the injured party at any time within the statute of limitations. Nor does an affirmance of the contract after discovery of the fraud...