McMullen v. Rousseau , 40 Wash. 497 ( 1905 )

Rudkin, J.

There is no controversy over the material facts in this case. „ On and prior to the 22d day of [February, 1904, the plaintiffs were the owners of a tract of land, consisting of about one and one-half acres, in Ault’s addition to South Snohomish, which the court below found to be of the value of $262.50. The defendants Happell and wife owned an adjoining tract, and were desirous of acquiring the land of the plaintiffs for less than it was worth, or at least upon more favorable terms than they were willing to sell the same. Knowing that he could not acquire the land himself on satisfactory terms, the defendant Dan Happell employed the defendant Rousseau to acquire the land for him. Soon after this a stranger called on the plaintiffs, and represented to them that he was looking for a site for a shingle mill and box factory for himself and brother; that he and his brother were experienced mill men, and had been in the mill business for twenty years in the state of Michigan; that his brother was a wealthy man, and was then on his way from Michigan to this state, and would reach here in a few days; that the land of the plaintiffs suited him as a mill site; and that he desired to purchase the same from the plaintiffs for that purpose.

Soon after this, the defendant Rousseau called on the plaintiffs and represented that he was the brother to whom the stranger referred. He repeated the representations theretofore made, and further represented that he had three car loads of mill machinery on the way from Michigan; that he •wanted the plaintiffs’ land as a site for a shingle mill and hox factory, and if he could purchase the same at a low figure he would set men at work in the construction of the mill in a few days; that he had been offered a free mil] site at Everett, but the plaintiffs’ land suited him better; that he owned timber enough to keep the proposed mill running for ten years, and that he would furnish the plaintiffs all the fire wood they needed from the mill free of charge; and that he would give the plaintiff E. D. McMullen employment in the mill at good wages.

The plaintiffs at that time asked $350 for the land, but no sale was made. Thereafter the defendant Rousseau wrote the plaintiffs from Everett, offering $200 for the land, and the plaintiffs, relying on the representations theretofore made, accepted the offer. On the 22d day of Eebruary, 1904, a deed was executed and delivered to defendant Rousseau, and the $200 paid. Immediately thereafter the defendant Rousseau conveyed the land to the defendant Victoria Happell. As soon as the land was conveyed to the Happells, the plaintiffs discovered the fraud perpetrated upon them, and immediately tendered the $200 to the Happells and demanded a reconveyance of the property. The demand was not complied with, and the plaintiffs brought this action to set aside the deeds, and paid the $200 into court. The court below found the facts as above set forth, and entered a judgment cancelling the deeds on the ground of fraud. Erom that judgment the defendants appeal¹.

The first error assigned is that the appellant Rousseau was neither a necessary nor a proper party to the action. The relief asked was the cancellation of two deeds, in one of which this appellant was grantee, in the other grantor. He was therefore a proper party to the suit. Furthermore, he was in no manner affected by the decree, no cost3 were awarded against him, and he should not be heard to complain.

The second assignment relates to the admission of evidence tending to show the representations made by the stranger who first called on respondents. The particular objection is that such representations are not set forth or alleged in the complaint. While this is true; testimony as to these representations was simply explanatory of the representations made by the appellant Rousseau. In addition ta this, the appellants in their proposed findings concede that the representations were made by Rousseau as alleged, and were false. The mere fact that they were also made by another could not affect the result.

The main contention of the appellants is that this case comes within the rule often announced by this court that, where tíre vendor and purchaser are dealing at arm’s length, and where the subject-matter of the sale is at hand, the purchaser must protect himself and cannot rely upon representations made by the vendor. This rule is firmly established where the representations relate to the subject-matter 'of the sale which is at hand, or to other facts the truth of which may readily be ascertained by the exercise of ordinary care and prudence. But the converse of this rule is equally well established where the subject-matter of the sale is not at hand, so that the truth or falsity of the representations concerning it may be ascertained, or where the representations relate to facts within the knowledge of one of the parties, and the truth or falsity of such representations cannot be ascertained by the other party upon reasonable investigation or by the exercise of reasonable care and prudence. Such are the eases of O'Connor v. Lighthizer, 34 Wash. 152, 75 Pac. 643; Mulholland v. Washington Match Co., 35 Wash. 315, 77 Pac. 497; Stack v. Nolte, 29 Wash. 188, 69 Pac. 753; and Lawson v. Vernon, 38 Wash. 422, 80 Pac. 559. In the last case cited this court said:

“But these cases are not in point [referring to the cases relied on by appellants]' in the case before us. Here the false representation was as to a material matter entirely without the knowledge of the respondents. As it was shown that the ground had been left to overgrow with brush and trees, and that the stakes of the original survey were destroyed, it was hardly possible for the respondents to locate the lots; hence they must of necessity rely on the representations of some one. Because they chose to rely on the representations of the appellants, the appellants cannot he heard to assert, as a means of escaping liability for making such representations, that the respondents should have gone to some one less reckless in their statements.”

Considering the small amount involved in the sale in question, and the nature of the representations made, it cannot he said that the respondents were at fault in not discovering the fraud prior to the sale.

There is no error in the record and the judgment is affirmed.

Mount, O. J., Pullebton, Hadley, Boot, Cbow, and Dunbab, JJ., concur.