West v. Carter

• Decision Date: 17 July 1909
• Citation: 54 Wash. 236,103 P. 21
• Court: Washington Supreme Court
• Parties: WEST et ux. v. CARTER et al.

103 P. 21

54 Wash. 236

WEST et ux. v. CARTER et al.

Supreme Court of Washington, En Banc.

July 17, 1909

Appeal from Superior Court, San Juan County; George A. Joiner Judge.

Action by Joseph West and wife against L. B. Carter and others. From the judgment, both parties appeal. Reversed and cause remanded, with instructions.

Frederick R. Burch and John A. Saboe, for plaintiffs.

T. D J. Healy and J. J. Noethe, for defendants.

DUNBAR J.

This is an action for damages for false representations as to the boundaries of land sold by the defendants to the plaintiffs. The findings of fact made by the court were substantially as follows: That the plaintiffs Joseph West and Eva West were husband and wife; that defendants Carter, Newhall, and Garrett were associated together in a partnership known as the 'San Juan Land Company,' a company organized for the purpose of buying and selling real property; that one A J. Armstrong and Emma Armstrong, his wife, resided on and were the owners of certain real property situate in San Juan county; that the said San Juan Land Company had the sole and exclusive right of sale of said real and personal property for the period of 30 days for the price of $1,450; that on or about December 24, 1906, the plaintiffs came from Wenatchee, Wash., to the town of Friday Harbor, for the purpose of looking over the country with a view to purchasing land; that they came to the home of William and Cora Lee, who were old acquaintances of the plaintiffs; that the visit of the said Wests to the Lees continued for the period of about one week, during which time the Lees advised West concerning certain premises; that the Lees described to the plaintiffs the property of the Armstrongs before mentioned, and offered to show them the same; that upon the next morning Lee informed the plaintiffs that he would have to drive them down to Friday Harbor to see Mr. Garrett (meaning W. R. Garrett, manager of the San Juan Land Company), and find out whether or not the place was still for sale; that the said Lee and the Wests drove to Friday Harbor, and Lee went to the office of W. R. Garrett, and ascertained that the said place was still for sale, which fact he reported to the Wests, and also that Mr. Garrett was unable to go out with them, but that he--Lee--knew as much about it as Garrett, and he thereupon drove the Wests to the Armstrong place; that at the time said plaintiffs and Lee went out to view said property the defendant Carter, at the request of the defendant Garrett, called Armstrong on the rural telephone and told him--Armstrong--to come immediately to town; that Armstrong was called to town as aforesaid for the express purpose of keeping the plaintiffs and Armstrong from meeting in order that said company's prospective commissions might not be jeopardized, and that the plaintiffs and Armstrong never did meet in connection with the viewing or selling of said premises; that Lee took the plaintiffs to the Armstrong place and pointed out the west, north, and south boundary lines, which were substantially correct. In pointing out the east line to plaintiffs Lee informed them that Armstrong told him that it was on the line of a certain fence, which fence made the tract pointed out as the Armstrong 40 include 18 acres on the west not belonging to said 40-acre tract or to said Armstrong; that said 18-acre tract was covered by 1 1/2 acres of stubble field, about 12 acres of slashing, and the balance rough and uncleared land; that upon the return of plaintiffs and Lee to the office of defendant Garrett, and before any contract of purchase was made, in speaking with reference to said last line of said Armstrong 40, Garrett informed plaintiffs that Armstrong told him that the stubble field and most of the slashing was included; that Lee and Garrett each in making the statement as to the eastern boundary of the Armstrong 40 did so believing said statements to be true and without any intent to deceive or defraud the plaintiffs, or either of them; that thereafter, on the 30th day of December, 1906, plaintiffs, relying wholly upon the statements of Lee and Garrett as to the boundaries of the Armstrong 40, and believing said statements to be true, and having no reason to believe otherwise, through the defendant land company, as the agent of said owners, agreed to purchase the said real and personal property for the sum of $1,650, providing they could raise the money therefor; whereupon Garrett, for and on behalf of the San Juan Land Company, agreed to hold said property a few days for them; that it was further understood and agreed in case the plaintiffs were able to raise the money to conclude the purchase that they should send it to either Garrett or Lee; that the plaintiffs returned to the house of Lee, where they stayed that night, and the next day departed for their home at Wenatchee; that on or about the 18th day of January, 1907, plaintiffs sent to Lee the sum of $500 to be applied in payment upon said property under the arrangements made with Garrett; that thereafter, to wit, on the 19th day of January, 1907, Lee took a contract of sale to himself from Armstrong for the real and personal property described for the sum of $1,505, under the following terms: $100 cash; $400 upon the approval of abstract, and the remainder in stated installments--that thereafter the money was paid to the Armstrongs and deed taken in the name of L. B. Carter; that thereafter, about the 1st of February, 1907, plaintiffs again arrived in Friday Harbor from Wenatchee, and were informed of the status of the transaction and purchase of the land by the San Juan Land Company, and Carter then executed and delivered to the Wests a bill of sale of the personal property and deed of conveyance to the tract of land above described, which said conveyance did not include the said 18-acre tract of land composed of the stubble field and alder slashing and the 1 1/2 acres of rough and uncleared land mentioned above, and the plaintiffs paid the land company the sum of $1,650, the agreed purchase price; that, after closing said purchase, the plaintiffs went to the home of the Lees, where they remained until February 10th, when they drove over to the Armstrong property, and were told by Armstrong that they had been misinformed as to the lines of said place, and the proper boundaries were pointed out to them. The plaintiffs elected to retain the land and sued for damages. The court further found that the reasonable value of the real estate excluding the 18 acres was $950, and that the personal property was of the reasonable value of $550; that the land described, including the 18 acres of slashing and stubble, etc., pointed out to the said Wests as part of the Armstrong premises, was reasonably worth the sum of $1,580; that the land pointed out to the Wests, together with the personal property which was transferred to them as a part of the transaction, was of the reasonable value of $2,130; that by reason of the statements made to plaintiffs by Lee and Garrett as to the location of the west boundary line of the Armstrong 40, and the purchase by plaintiffs of the said real and personal property, and by reason of and wholly relying upon said representations and believing the same to be true, and having no reason to believe otherwise, the plaintiffs were damaged in the sum of $150, and judgment was entered for that amount. Both parties have appealed.

The court awarded to the plaintiffs as their measure of damages the difference between the amount which they actually paid and the actual value of the land as found; while it is the contention of the plaintiffs that the proper measure of damages was the difference between the amount paid and the amount represented to be the value of the land or the difference between the amount paid and the value of the land as it would have been if the land represented to have been sold had been actually sold. In other words, the question to be determined is whether, conceding the misrepresentations the plaintiffs are entitled to the benefit of their bargain. The defendants insist that the action should have been dismissed because no false representations were made by defendants; that the complaint shows that the basis of plaintiffs' case is fraud or deceit consisting of the alleged...