Stelter v. Fowler

• Decision Date: 08 March 1911
• Citation: 113 P. 1096,62 Wash. 345
• Parties: STELTER et ux. v. FOWLER et ux.
• Court: Washington Supreme Court

113 P. 1096

62 Wash. 345

STELTER et ux. v. FOWLER et ux.

Supreme Court of Washington

March 8, 1911

Department 1. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action by Gustave Stelter and wife against B. P. Fowler and wife. From a judgment for defendants, plaintiffs appeal. Reversed with directions.

Roche &amp Onstine and F. W. Girand, for appellants.

Henley, Zent & Cannon and Davis & Davis, for respondents.

GOSE J.

On August 18, 1909, the plaintiffs commenced this action for the purpose of setting aside a deed which they had theretofore executed to defendants, and for damages. They have appealed from a judgment dismissing the action. In due time the appellants filed and served a proposed statement of facts, and gave notice to the respondents and their counsel 'that on Friday the 26th day of August, 1910, at 10 o'clock a. m., they would make application to' the Honorable E. H. Sullivan, one of the judges of the above-entitled court, to settle and sign the statement of facts in the cause. The notice was properly entitled. Within the time fixed by statute, the respondents filed certain proposed amendments, all of which were allowed by the judge, except that he refused to substitute the word 'no' for the word 'yes,' and thereupon he certified the statement of facts. This fact is shown in the judge's certificate and also appears from a comparison of the proposed amendments with the certified statement of facts.

The respondents have moved to strike the statement of facts, on the ground that the 'place' of settlement of the statement was not named in the notice as required by Rem. & Bal. Code, § 389. The testimony of the witness would not have been changed by the substitution proposed. A reading of the context clearly discloses what the witness intended to say. No one could be misled by the use of either of the words 'yes' or 'no.' In substance and effect it became an agreed statement, and the judge was warranted in certifying it under the provisions of the statute above cited. The motion also suggests that the notice fails to state that Judge Sullivan is the judge before whom the cause was tried. This, however, appears in the certificate. The motion is denied.

The complaint, in substance, alleges that the appellants were the owners of 160 acres of land in Spokane county, of the value of $12,000, subject to a mortgage of $2,900, on the 11th day of June, 1909; that the respondents had a contract for the purchase of a section of land in Adams county at the agreed price of $12,800; that on the date stated the appellants conveyed their land to the respondents, in consideration of the assignment of the contract which the latter held on the Adams county land; that the respondents induced the appellants to make the exchange, by representing that $3,000 had been paid on the contract; that the land was worth from $35 to $40 per acre; that it was in crop and would produce from 20 to 25 bushels per acre; that there had been 3 or 4 recent heavy rains upon the land; and that it was free from mustard and thistle. It is also alleged that the appellants cannot read or write the English language; that they relied upon the respondent to correctly read the contract to them; that no payments had been made on the land; that it was not worth to exceed $15 to $20 per acre; that the crop did not yield more than 5 bushels per acre; that no rain had fallen; that a short time after the exchange of conveyances the appellants moved onto the land, and, upon discovering that the conditions were not as represented, offered to reassign the contract, and demanded a return of the deed. The prayer is for a rescission and for damages. Issue being joined upon the averment of fraud, the case proceeded to trial.

The court found that the respondents had a contract for the purchase of a section of land in Adams county for the sum of $12,800, and that there was an equal exchange of conveyances as alleged in the complaint. Findings 5 and 6 are as follows:

'That the said defendants represented to plaintiffs that three thousand dollars ($3,000) had been paid by defendants upon said contract price; that said land was of the value of $25 to $30 per acre; that said land was free from mustard and thistle, all of which were false.

'That plaintiffs were unable to read and write English; that said defendants have not paid the sum of three thousand dollars ($3,000) upon said contract, and said land was not worth more than thirteen thousand dollars ($13,000).'

There was a further finding that the appellant husband went to Adams county in the month of May, 1909, in search of land that he sought the respondents and proposed a trade; that, in company with a resident of that part of the county, he drove by the land in question and had an opportunity to inspect it; that thereafter the respondent went to Spokane county at the request of the appellants, inspected their land, and consummated the trade about June 9, 1909; that the next week the appellants moved to Adams county,...