J. E. Pinkham Lumber Co. v. Woodland State Bank , 156 Wash. 117 ( 1930 )

I dissent.

I concur in the disposition of the first question in the prevailing opinion.

But, as at present advised, I cannot agree that, in a suit to rescind a purchase and recover the proceeds thereof in the hands of the only party having any title or interest therein, the case should be governed by our long-standing rule as to releases of one or more joint tort-feasors of liability for any damages, and then proceeding against another of the joint tort-feasors.

Such a case as this, it seems, should be governed by the rule applied in Veazie v. Williams, 8 How. (U.S.) 133,12 L. Ed. 1018. There, by the subterfuge of "by-bidding," a party was fraudulently induced to purchase property at an auction sale, at a sum of more than he would otherwise have had to offer or pay, and at more than its real value. A release had been given to the auctioneer, who had participated in the fraud. It was urged that this released the defendant, in a suit to rescind the purchase and recover the purchase price. The court said:

"Again, in the present instance, there was no joint liability at law by the respondents and the auctioneer. Their accountability was separate, and resting on different grounds; his, on actual falsehood; theirs on the adoption of the benefits of it, and the accountability thus arising for it. The release of one, therefore, is not like the release of a joint contractor or joint trespasser."

That principle seems to fit the proposition here involved, precisely.