Yarnall v. Knickerbocker Co.

• Decision Date: 15 May 1922
• Docket Number: 16995.
• Citation: 120 Wash. 205,206 P. 936
• Parties: YARNALL v. KNICKERBOCKER CO.
• Court: Washington Supreme Court

206 P. 936

120 Wash. 205

YARNALL v. KNICKERBOCKER CO.

No. 16995.

Supreme Court of Washington

May 15, 1922

Department 1.

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Action by Frank Yarnall against the Knickerbocker Company. From judgment for plaintiff, defendant appeals. Affirmed.

C. A Riddle, of Seattle, for appellant.

Kelleran & Hannan, of Seattle, for respondent.

FULLERTON, J.

September 27, 1919, the respondent, Yarnall, and the appellant Knickerbocker Company, entered into a written contract whereby the appellant agreed to sell, and the respondent agreed to purchase, a tract of land described as follows:

'North half (N. 1/2) of lot eighteen (18) and the north half (N. 1/2) of the west one-half of lot nineteen (19) block C, Hartings addition to the city of Seattle, King county, state of Washington, as per recorded plat thereof in the office of the auditor of said King county, Wash.'

The agreed purchase price of the land was $2,100. Of this sum $200 was paid on the execution of the contract, and the balance agreed to be paid in installments of $25 on the first day of each and every month thereafter, beginning with the month of November following, until the full purchase price was paid; the deferred payments to bear interest at the rate of 7 per cent. per annum, and to be paid monthly. There was upon the premises at the time of the purchase a new bungalow and the purchasers were let into possession at once.

In the negotiations leading up to the contract of sale, the appellants were represented by a real estate firm, members of which took the respondent and his housekeeper to the property and showed them over it prior to the execution of the contract. While there is a dispute in the evidence as to the fact, the respondent and his housekeeper testified that prior to the execution of the contract, when they were on the property with members of the real estate firm who were showing them the property, they inquired as to its dimensions, saying that they wished sufficient ground upon which to raise a small garden and keep a few chickens, and that the agents told them that the size of the property was 60 by 60 feet, and that, when the housekeeper said she did not know 'how big that was,' a fence was pointed out back of the property, running parallel with the street in front of the property and about 70 feet therefrom, which they were told was near the back line of the premises.

After entering into the possession of the property, the respondent made the monthly payments as they became due according to the terms of the contract up to November, 1920. At that time it was discovered that the tract contained in the description was not 60 by 60 feet in size, but was only 40 1/2 by 48 feet; the longer line paralleling the street, and the back line of tract running within 6 or 7 feet of the back side of the bungalow. On the discovery of the fact, the respondent immediately sought a rescission of the contract. The parties, however, were unable to agree, and the respondent thereupon brought the present action to compel rescission, and to recover the sums paid upon the contract. The cause was tried by the court as an action of equitable cognizance; the court finding that the representations as to the size of the lots were material representations, that the respondent was deceived thereby and induced to contract for the purchase of the premises because thereof; entering a decree of rescission, in which it allowed a recovery for the amount paid upon the contract of purchase, together with the taxes and insurance premiums paid while the respondent was in possession, less the value of the use of the premises between the time the notice of rescission was given and the date of the decree, which was found to be the sum of $126. No allowance of interest was made to the respondent on the sums paid by him pursuant to the terms of the contract.

There was, as we have indicated, a conflict in the evidence on the question whether the agents made representations as to the size of the tract. The evidence however, it would be unprofitable to review. It was affirmed by the respondent and his housekeeper on the one side, and denied by the agents, two in number, on the other. The trial court was in better position to judge of the testimony than are we, and we cannot say that it preponderates against his conclusion. So, also, with respect to the further contention that the size of the tract was not the material consideration which induced the respondent to enter into the contract. We think the evidence is clear that it was one of the material considerations. The tract was in a comparatively thinly settled portion of the city of Seattle, and the respondent desired it for a home, where he could have a garden and keep chickens. The actual position of the back line of the premises...