Wilson v. Mills

• Decision Date: 06 May 1916
• Docket Number: 12972.
• Citation: 157 P. 467,91 Wash. 71
• Parties: WILSON et ux. v. MILLS et al.
• Court: Washington Supreme Court

157 P. 467

91 Wash. 71

WILSON et ux. v. MILLS et al.

No. 12972.

Supreme Court of Washington

May 6, 1916

Department 1. Appeal from Superior Court, King County; Everett Smith Judge.

Action by Paul Wilson and wife against E. W. Mills and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

W. H. Abel, of Montesano, A. M. Abel, of Aberdeen and Farrell, Kane & Stratton, of Seattle, for appellants.

Alexander & Bundy and Turner, Hartge & Turner, all of Seattle, for respondents.

ELLIS J.

Action to rescind an exchange of properties on the ground of alleged fraudulent representations. Some time in August, 1914 plaintiffs exchanged lots 4, 5, and 6 of block 1 Sturtevant's Rainier Beach Lake Park Cottage Tracts in King county subject to a mortgage for $3,500 and some interest for 200 acres of land in Chehalis, now Grays Harbor county, and approximately 42 acres in Mason county, owned by defendants. The 200 acres was subject to a mortgage for $7,500 and some interest. The Mason county land, which was held under contract from the state, was subject to unpaid installments of the purchase price amounting to $280 and some interest. In addition to the land the defendants also contributed to the exchange 38 cows, certain calves, horses, hogs, hay, oats, household furniture, tools, implements, etc. Plaintiffs, for the purpose of the trade, valued their King county property at $16,500, defendants assuming the mortgage on it. Defendants valued their land for the purpose of the trade at $28,000, plaintiffs assuming the indebtedness against it, giving a chattel mortgage for $3,500 to offset the mortgage assumed by defendants and paying the difference of $4,000 in money. The deeds were exchanged on August 21, 1914, and possession soon after. The land in Grays Harbor county consists of five 40-acre tracts, four of which lie lengthwise abutting on the line between Grays Harbor and Mason counties, the fifth immediately west and the land in Mason county immediately east of the southerly of the four first-mentioned 40's.

Plaintiffs charge that defendants falsely represented that the Grays Harbor county land was distant by the traveled road from Matlock only 4 miles, and from Satsop only 8 to 10 miles; that all of the land in that county was bottom land, mostly first bottom, all with soil from 3 to 4 feet deep, not gravelly nor liable to erode; that only 15 acres were in the bed of the Satsop river, and that the river ran through only two of the 40's; that the other three 40's were wholly east of the Satsop river; that there was a fine strip of pasture land west of the river in the west 40; that the oat patches on the land contained 16 acres; that the oat crop, which was then ready for harvest, would run from 90 to 100 bushels to the acre; that there were then in the barn from 100 to 120 tons of good hay; that the income from the 38 cows was from $80 to $90 every two weeks, and that the lands were of as great fertility as Chehalis river bottom lands. It is alleged that plaintiffs relied upon these representations in making the exchange. All of these charges were put in issue by the answer. The action was originally commenced in Grays Harbor county, but upon application of defendants for a change of venue was transferred to King county for trial.

After a lengthy trial and after the trial judge had examined the respective properties, a judgment was rendered dismissing the action upon its merits, neither party to recover costs. Plaintiffs appeal.

It is first urged that the court committed error in granting a change of venue. It is argued that, inasmuch as 200 acres of the land were located in Grays Harbor county, under the doctrine announced in Seymour v. La Furgey, 47 Wash. 450, 92 P. 267, the action was local and should have been tried in that county. This argument overlooks the fact that the real purpose of the action was to recover real property situated in King county. Assuming without deciding that an ordinary action of rescission of a land sale is local to the county where the land lies, in this case it is certainly as much local to King county as to Grays Harbor county. We find no error in the granting of the change of venue.

On the merits the main contention is that there was fraudulent and inducing misrepresentation as to the proportion or amount of bottom land in the 200 acres located in Grays Harbor county. Shortly after the commencement of this action two surveys were made; one on behalf of the appellants classifying the land in Grays Harbor county as follows: Hill land 14 acres, gravel bench 26 acres, river bed and gravel bars 40.3 acres, bottom 116.6 acres, total 196.9 acres; the other on behalf of the respondents classified the same land as follows: First bottom 117.4 acres, second bottom 6.3 acres, bench 13.3 acres, upland 32.5 acres, river and gravel bars 30.5 acres, total 200 acres. The alleged misrepresentation is based largely upon a memorandum made by one Simpson, agent for respondents, from information gathered in various conversations with Mills and given to appellants a few days before the parties met. This is referred to as the 'yellow sheet' and reads:

'Near Satsop. Price for all $30,000. 242 acres. 55 upland and timbered. Balance mostly bottom land. All available for pasture that is not entirely cleared for ploughing. 38 cows. 1 registered Guernsey bull. Fine one. 8 yearling heifers. 12 this year heifers. 1 registered imported black Percheron stallion. 2 registered black Percheron mares; one imported. 2 registered black fillies. 1 registered black colt. Can carry 50 cows. 16 hogs. 1 brood sow. 8 pigs. 100 to 125 tons of hay. About 1,500 bushels oats--spuds, rutabagas, etc. All tools, machinery and furniture. Good 9-room house, concrete foundation. Barn 75X90; stables on each side. 2 hog buildings. 2 chicken houses. 1 milk room and separator. Woodhouse, smokehouse, etc. Full equipment of tools, wagon, lawnmower, rake, disc, harrow, etc. E. F. Simpson, care Burwell & Morford.'

A few days before August 9th the parties met in a real estate office in Seattle and talked over the prospects of an exchange, finally agreeing that together they would visit the land so that appellants might examine it. This trip was made on August 8th or 9th, at which time appellants spent some three or four hours in examining the property in company with respondent Mills and one Gokey. Appellant Paul Wilson testified that he had the yellow sheet with him on the trip for the purpose of comparison with observed conditions. He knew that the Mason county land was all upland timbered. He knew that if there were in all 55 acres of upland timbered there would be left but 187 acres to meet the description 'balance mostly bottom land.' In addition to this, the sketch or map made by Mills at their first meeting, to which we shall presently advert, shows a tract marked 'second bottom,' which Wilson testified Mills told him contained about 15 acres. Wilson while examining the land was on this tract and knew that it was included in the yellow sheet estimate of 'balance mostly bottom land.' He knew also that the Satsop river flowed across at least two of the 40's. He knew therefore that whatever of the land was in the river bed and gravel bars was included in the yellow sheet estimate of balance mostly bottom land, as well as the 15 acres of bench or second bottom. There was no representation in this yellow sheet as to how much of the land was actually river bed and gravel bars, but Wilson knew--he must have known--that it was included and classified as bottom land. Knowing then that the statement in the yellow sheet was not literally accurate he cannot now be heard to say that he relied on it as being literally accurate.

In addition to the representations contained in the yellow sheet, appellant Paul Wilson testified that at the first meeting with Mills and while he (Wilson) had the yellow sheet in his possession, Mills told him, in response to a direct question, that there were about 15 acres in the river, also, 'at this time he said there was 170 acres of bottom.' This, however, was apparently his own deduction. He said:

'I asked him how many acres of second bottom, this gravel bench. '15,' he said, and taking 30 from the total left 170 as I understood it. I supposed when I bought the place I bought 170 acres of bottom land.'

Yet he knew at...