Sova v. First Nat. Bank of Ferndale, 28714.

• Decision Date: 28 May 1943
• Docket Number: 28714.
• Parties: SOVA v. FIRST NAT. BANK OF FERNDALE et al.
• Court: Washington Supreme Court

138 P.2d 181

18 Wn.2d 88

SOVA v. FIRST NAT. BANK OF FERNDALE et al.

No. 28714.

Supreme Court of Washington

May 28, 1943

Department 2.

Action by Jerry Sova against First National Bank of Ferndale and others for damages from conspiracy to defraud plaintiff of his property in an exchange of realty. From a judgment for plaintiff after defendants John and Irene Connell's motion for nonsuit was sustained and jury was instructed to return a verdict in their favor and other defendants' motions for nonsuit, instructed verdict, and judgment notwithstanding verdict for plaintiff were denied, other defendants appeal. Plaintiff having died, Clifford J McMillin as his executor was substituted as party plaintiff.

Affirmed.

Appeal from Superior Court, Whatcom County; Hon Hobart S. Dawson, judge.

Walter B. Whitcomb and Sather, Livesey & Kingsbury, all of Bellingham, for appellants.

Fred W Neal, of Bellingham, and Henderson & McBee, of Mount Vernon, for respondents.

BEALS Justice.

Jerry Sova was, during the year 1939, a resident of Whatcom county, owning two tracts of land, one known as Nugent's bridge farm, about fifteen miles northeast of the city of Bellingham, the other referred to as the Bell creek farm, located five miles farther from the city. Mr. Sova was a bachelor, seventy-six years of age, and resided with one Furness, his man of all work, upon the Bell creek farm, upon which was considerable farm equipment and some livestock, all of which he owned.

Mr. Sova was a man of limited education, his schooling not having extended beyond the fourth or fifth grade. His eyesight had failed to such an extent that it was hard for him to read anything other than large print, and he had great difficulty in reading ordinary handwriting. His character and mental condition will be discussed later in this opinion.

The Nugent bridge farm was subject to a Federal Land Bank mortgage of $2,025. His other indebtedness, if any, was inconsiderable.

Mr. Sova had lived in Whatcom county over sixty years. During the greater portion of this period he had been engaged in farming, either for himself or in the employ of others. A tenant was occupying the Nugent bridge farm, paying $350 a year rental.

First National Bank of Ferndale was engaged in the banking business in the vicinity, Percy Hood was president of the bank, and Carl E. Yeager was engaged in business as a real estate operator in Bellingham, as was John Connell. The men had been acquainted for several years.

Not far from Sova's properties was a farm owned by Messrs. Hayton and Moen, of Mount Vernon, who had purchased the property in 1938 for $5,000. (This property will hereinafter be referred to as the Tarte place.) Yeager and Connell had an option giving them the right to purchase this property for $6,500. Yeager requested the bank to advance him money to buy the property, but the bank refused, as Yeager had already borrowed to the limit of his credit. There was, however, discussion of the matter between Yeager and Hood, representing the bank.

During the spring of 1939, Yeager spoke to Sova, asking him if he would consider a trade for either or both of his farms. Sova was responsive, and Yeager showed him several properties, in at least one of which Sova became interested. During the early part of May, Sova, his employee Furness, and Yeager again looked at this property, and on their return passed the Tarte place, a one hundred sixty acre farm, of which approximately thirty acres were timber land, and the balance improved.

The result of the negotiations between the parties was that Sova, by separate deeds, conveyed his two farms to the bank, together with a bill of sale to all of his farm personal property, including the stock. Hayton and Moen had delivered to an abstract company a deed to the Tarte property, no grantee being named therein, Sova's name being later written in as grantee. Sova also signed a note, payable to Carl Shepherd (Yeager's son-in-law), in the sum of $6,500, together with a mortgage on the Tarte farm securing the note, which note and mortgage, upon the day they were executed, were by Shepherd assigned to the bank.

March 23, 1940, Sova instituted this action against First National Bank of Ferndale, Percy Hood and Grace Hood, his wife, Carl E. and Lillian I. Yeager, and John and Irene Connell, alleging that as the result of a conspiracy entered into by the defendants named, he had been misled and defrauded, and deprived of real and personal property of the value of $14,000, receiving therefor nothing save the Tarte farm, subject to a mortgage for $6,500, the amount of the mortgage being at least equal to the value of the farm. Plaintiff prayed for judgment against the defendants in the sum of $14,000.

April 1, 1941, plaintiff filed an amended complaint, alleging rather larger values in connection with the property which he had exchanged for the Tarte farm, and asking for judgment against defendants for over $20,000.

The defendant bank and defendants Hood answered jointly, denying the material allegations of plaintiff's complaint. These defendants also pleaded an affirmative defense, alleging the execution of the note by plaintiff in favor of the bank, together with the mortgage securing the same, and slso alleging the execution of the bill of sale of the personal property to the bank, and that none of the answering defendants had any personal dealings with plaintiff, and took the note, mortgage and bill of sale without knowledge of any infirmity therein. To this affirmative defense, plaintiff replied, denying the same.

Defendants Yeager answered, also denying the material allegations of the complaint, as did defendants Connell.

The issues having been completed, the action was tried to a jury, which returned a verdict in favor of the plaintiff and against the defendants First National Bank of Ferndale, Percy and Grace Hood, and Carl E. and Lillian I. Yeager, in the sum of $16,812.50. At the close of plaintiff's case, the court sustained defendants Connell's motion for a nonsuit, and later instructed the jury to return a verdict in their favor. After the denial of motions by the defendants against whom the verdict ran, for judgment in their favor notwithstanding the verdict, or in the alternative for a new trial, judgment was entered upon the verdict in plaintiff's favor, from which defendant bank and defendants Hood have appealed, and defendants Yeager have prosecuted a separate appeal.

In this opinion, First National Bank of Ferndale will be referred to as appellant bank; appellant Percy Hood will be referred to as Hood; and appellant Carl E. Yeager, as Yeager.

Appellants bank and Hood make forty assignments of error, eleven upon the admission of testimony offered by respondent over their objection, four upon instructions given by the court to which exceptions were taken, thirteen upon refusing to give instructions requested by appellants, the others being stated as follows: Upon the denial of appellants' motion for a mistrial at the close of respondent's case; upon the denial of their motion for a nonsuit; upon the denial of various motions to withdraw from consideration by the jury certain questions concerning misrepresentations which respondent claimed were made to him; upon the rejection by the court of a deed offered as an exhibit; upon the denial of their motion for an instructed verdict in their favor; and upon the denial of their motion to instruct the jury that in no event could a verdict be returned against those appellants for any sum greater than $6,500 and interest. Finally, appellants assign error upon the denial of their motion for judgment in their favor notwithstanding the verdict; upon the denial of their motion for a new trial; and upon the entry of judgment against them.

Appellants Yeager make thirty-four assignments of error, which in the main follow the assignments of error above referred to.

During the month of June, 1942, respondent, Jerry Sova, died, and his will having been probated and a motion to substitute his executor as party plaintiff herein having been made, such substitution has been ordered, and Clifford K. McMillin, as executor of the estate of Jerry Sova, deceased, has been substituted as party plaintiff and respondent herein. For convenience, we shall in this opinion refer to Mr. Sova as respondent.

As above stated, this is an action for damages sustained, as claimed by respondent, as the result of a conspiracy to deprive him of his property in an exchange of real estate. Respondent testified that the Bell creek farm was worth $12,000. Witnesses whom he had called valued the place at from $10,000 to $15,000. Appellants' witnesses valued the property at from $4,000 to $6,500.

Respondent valued the Nugent bridge farm at $9,000; his witnesses valued it up to $12,500; while appellants' witnesses valued it at from $3,300 to $4,600.

Respondent valued the personal property which he transferred to the bank at $3,000. A witness who was well acquainted with the property valued it at two hundred dollars less. No definite testimony as to the value of this property was introduced by appellants. After receiving title thereto, the bank sold the greater portion of the property at auction, but the amount which the bank received is not definitely disclosed by the record.

As the net result of the transaction, respondent received the Tarte farm, subject to the mortgage which he executed as part of the transaction, in the amount of $6,500. Assuming that respondent was entitled to a verdict, the evidence would support such a verdict in a considerable amount.

The trial court allowed the parties to introduce evidence covering a wide field, the statement of facts comprising over seven hundred pages.

It...