We therefore conclude that the work done under this contract does not fall within any recognized exception to the general rule. The work was not in itself unlawful. The injury resulted, not from the act of performance, but from the manner of performance. It was not due to any defect in the plans; it was not due to the employment of an unskillful contractor, nor to one who did not have sufficient knowledge of the work to be performed to execute it in a proper manner, providing he used due care in its construction. The work itself was not inherently nor intrinsically dangerous; it was not a nuisance.

Appellant's motion for judgment at the close of the evidence should have been granted, and for such error the judgment is reversed, and the cause remanded, with instructions to dismiss.

DUNBAR, C. J., and CROW, J., concur.

CHADWICK, J. I dissent. Had the opening been in the sidewalk, plaintiff would recover under the authorities cited; the excavation would have been a nuisance against which the owner could not guard himself by letting a contract to an independent contractor. By the same rule an owner should be held liable, if the excavation is made upon the line of an open sidewalk. This is what was done in this case. The plans called for the cut-out which is placed under all show windows, so that light and air may be admitted into the basement of the completed structure. The cut-out or opening was flush with the sidewalk. The rule is that, where an owner undertakes to do a work which in the ordinary mode of doing it is a nuisance, he is liable for any injuries which may result from it to third persons, though the work is done by the contractor exercising independent employment and employing his own servants. It is only where such work. or the detail of it, is not in itself necessarily a nuisance that the exemption applies. This rule and the exception to it are noted in the cases cited in the majority opinion, and the distinction made is sustained by all the authorities. The liability of the owner, then, is measured by the condition, and not by the distance or exact location of the pitfall, if, under the circumstances of the particular case, it is a menace to life or limb, unless the distance from the sidewalk was so great that reasonable minds would concur in holding that it was not a menace to life or limb, or, in other words, a nuisance. In the instant case, I am unable to distinguish between the cases holding that an excavation or pit left in the sidewalk by an independent contractor will bind the owner |

flush with the edge of the sidewalk. The pedestrian is entitled to the whole of the walk, and to assume that he may step from one side to the other without danger. Therefore, the excavation being a nuisance in itself, the owner should not be allowed to claim exemption from damages, merely because it was created by the contractor who followed the plans and specifications. The owner is bound to furnish proper plans and specifications, and, admitting that the contractor left the cut-out under the show window, and that it was in accordance with the plans and specifications, it would be a defect therein, within the meaning of the term as applied in cases like this, and the appellant should be held under the general rules announced in the majority opinion. Robbins v. Chicago, 71 U. S. 657, 18 L. Ed. 427, states the law applicable to this case, and it should be followed.

(62 Wash. 345)

STELTER et ux. v. FOWLER et ux. (Supreme Court of Washington. March 8, 1911.)

1. APPEAL AND ERROR ($573*)-RECORDSTATEMENT OF FACTS-AGREED STATEMENT. Where appellant served a proposed statement of facts on respondent, and the latter suggested amendments, all of which were allowstitute the word "no" for the word "yes" as the ed by the judge, except that he refused to subanswer of one of the witnesses to a question, the statement will be regarded as an agreed such word would not have changed the meanstatement of facts, where the substitution of ing of the witness' testimony.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2560-2566; Dec. Dig. § 573.*1

2. APPEAL AND ERROR (§ 655*)-RecordSTATEMENT OF FACTS-SETTLEMENT-No

TICE.

A statement of facts on appeal will not be stricken on the ground that the notice of the application to settle and sign the same failed to state that the judge to whom the application was to be made was the judge who tried the cause, where such omission was supplied by the certificate of the judge settling the state

ment.

Error, Cent. Dig. § 2823; Dec. Dig. § 655.*] [Ed. Note.-For other cases, see Appeal and 3. DEEDS (8 211)-FRAUD-EVIDENCE. In an action to cancel a deed for fraudulent representation inducing its execution, evidence held sufficient to sustain a finding in favor of plaintiff.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 644, 645; Dec. Dig. § 211.*]

4. EXCHANGE OF PROPERTY (§ 5*)-RESCISSION-LACHES.

A party to a contract for exchange of land was entitled to rescind for fraud, though he moved onto the land and harvested a crop. where the fraud constituting the ground for rescission was not discovered until after he had completed the harvesting.

[Ed. Note.-For other cases, see Exchange of Property, Cent. Dig. § 7; Dec. Dig. § 5.*]

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 442-446; Dec. Dig. § 97.*] 6. EXCHANGE OF PROPERTY (§ 3*)-FRAUDEXPRESSION OF OPINION.

Representation as to the value of land made to induce an exchange of lands are mere expressions of opinion which will not afford ground for rescission.

[Ed. Note. For other cases, see Exchange of Property, Cent. Dig. § 3; Dec. Dig. § 3.*]

The respondents have moved to strike the statement of facts, on the ground that the "place" of settlement of the statement was not named in the notice as required by Rem. & Bal. Code, § 389. The testimony of the witness would not have been changed by the substitution proposed. A reading of the context clearly discloses what the witness intended to say. No one could be misled by the use of either of the words "yes" or "no." In substance and effect it became an agreed statement, and the judge was war

False representations by one party to a contract for the exchange of land that he had paid a stated amount on the purchase price of his own land, and that such land was free from mustard weeds and thistles and in respect to recent rains in the vicinity of the property, were material and afforded ground for rescission.

an ex

[Ed. Note. For other cases, see Exchange of Property, Cent. Dig. § 3; Dec. Dig. § 3.*] 8. BROKERS (§ 102*)-FRAUDULENT REPRESENTATION-ACT OF PLAINTIFF'S AGENT. Where a broker brought about change of lands between plaintiff and defendant, and, by collusion between the broker and defendant, the broker misread the contract to plaintiff who could not read or write, plaintiff was entitled to rescind the contract whether or not the broker was his agent.

of the statute above cited. The motion also suggests that the notice fails to state that Judge Sullivan is the judge before whom the cause was tried. This, however, appears in the certificate. The motion is denied.

The complaint, in substance, alleges that the appellants were the owners of 160 acres of land in Spokane county, of the value of $12,000, subject to a mortgage of $2,900, on the 11th day of June, 1909; that the respondents had a contract for the purchase of a section of land in Adams county at the agreed price of $12,800; that on the date stated the appellants conveyed their land to the respondents, in .consideration of the assignment of the contract which the latter

Department 1. Appeal from Superior Court, Spokane County; E. H. Sullivan, Judge.

Action by Gustave Stelter and wife against B. P. Fowler and wife. From a judgment for defendants, plaintiffs appeal. Reversed,

with directions.

Roche & Onstine and F. W. Girand, for appellants. Henley, Zent & Cannon and Davis & Davis, for respondents.

GOSE, J. On August 18, 1909, the plaintiffs commenced this action for the purpose of setting aside a deed which they had there tofore executed to defendants, and for damages. They have appealed from a judgment dismissing the action. In due time the appellants filed and served a proposed statement of facts, and gave notice to the respondents and their counsel "that on Friday the 26th day of August, 1910, at 10 o'clock a. m., they would make application to" the Honorable E. H. Sullivan, one of the judges of the above-entitled court, to settle and sign the statement of facts in the cause. tice was properly entitled. Within the time fixed by statute, the respondents filed certain proposed amendments, all of which were allowed by the judge, except that he refused to substitute the word "no" for the word "yes," and thereupon he certified the statement of facts. This fact is shown in the judge's certificate and also appears from a comparison

The no

spondents induced the appellants to make the exchange, by representing that $3,000 had been paid on the contract; that the land was worth from $35 to $40 per acre; that it was in crop and would produce from 20 to 25 bushels per acre; that there had been 3 or 4 recent heavy rains upon the land; and that it was free from mustard and thistle. It is also alleged that the appellants cannot read or write the English language; that they relied upon the respondent to correctly read the contract to them; that no payments had been made on the land; that it was not worth to exceed $15 to $20 per acre; that the crop did not yield more than 5 bushels per acre; that no rain had fallen; that a short time after the exchange of conveyances the appellants moved onto the land, and, upon discovering that the conditions were not as represented, offered to reassign the contract, and demanded a return of the deed. The prayer is for a rescission and for damages. Issue being joined upon the averment of fraud, the case proceeded to trial.

The court found that the respondents had a contract for the purchase of a section of land in Adams county for the sum of $12,800, and that there was an equal exchange of conveyances as alleged in the complaint. Findings 5 and 6 are as follows:

"That the said defendants represented to plaintiffs that three thousand dollars ($3,000) had been paid by defendants upon said contract price; that said land was of the value

of $25 to $30 per acre; that said land was free from mustard and thistle, all of which were false.

"That plaintiffs were unable to read and write English; that said defendants have not paid the sum of three thousand dollars ($3,000) upon said contract, and said land was not worth more than thirteen thousand dollars ($13,000)."

There was a further finding that the appellant husband went to Adams county in the month of May, 1909, in search of land; that he sought the respondents and proposed a trade; that, in company with a resident of that part of the county, he drove by the land in question and had an opportunity to inspect it; that thereafter the respondent went to Spokane county at the request of the appellants. inspected their land, and consummated the trade about June 9, 1909; that the next week the appellants moved to Adams county, and, after seeing the land and ol serving the conditions, purchased a house and barn and moved them upon the land; that they occupied the buildings and exercised dominion over the land continuously until after the harvest of 1999; that they cut and stacked the crop grown thereon; that on July 28th the appellants listed the land for sale with certain real estate agents for a period of six months, at the price of $35 per acre; and that they made no effort to rescind the contract of sale and exchange until the commencement of the action. The court deduced the legal conclusion that the appellants "elected to and did affirm the contract." and that they cannot now rescind. At the trial the appellants tendered a reassignment of the contract for the Adams county land.

There is abundant evidence of the most convincing nature to support all the findings of fact made by the court, except that the date of the listing of the Adams county land for sale with the real estate agents was upon June 28th irstead of July 28th, and the listing price was $20 instead of $35 per acre. The evidence discloses a further significant fact not found by the court, viz., that the appellants shipped their goods, including the contract. from Spokane to Adams county, and that the goods did not arrive until some three or four weeks after the appellants moved onto the land. It was not until after the middle of July that the appellants received their goods and with them the contract. They then had the contract re-read to them, and first learned that there had been no payment on the land and that the representation that $3,000 had been paid was false. While the evidence is not clear upon the point, we think it may reasonably be inferred that the crop had then been cut and stacked. Upon discovering that no payment had been made on the land, the appellants proceeded with reasonable promptitude to give notice of rescission. They took nothing

upon it and cut and stacked the crop. The respondents were in no way injured or misled. The taking of possession and the cutting of the crop may properly be held to constitute a waiver as to all misrepresentations then known, but they do not preclude a rescission for fraud which was discovered later. Nor can it be said that the appellants were wanting in diligence in having the contract re-read to them. They had relied upon the respondent husband and one Schutz, a real estate agent, to correctly read the contract, and it does not lie with respondents to urge that the appellants should bear the burden of their own credulity. No man should be permitted to sell or exchange a lie for more than its intrinsic value. It has from the beginning been one of the boasted tenets of equity that it would protect the weak, ignorant, and credulous against the machinations of the strong and the designing. The question of the value of the land and the amount of the yield may be treated as expressions of opinion; but all other matters, such as recent rains, and that the land was free from mustard and thistle, were statements of material facts. It is not important to determine whether Schutz, the real estate agent, was the agent of appellants or of respondents. In either event, the evidence is convincing that there was a collusion between him and the respondent husband, and that he, with the knowledge of the latter. misread the contract to the effect that $3,000 had been paid. It is also worthy of notice that the Adams county land was listed for sale with Schutz, the party who first read the contract to the appellants and assisted the respondents in the consummation of the fraud, upon his representations to the appellants that he could promptly sell it at a price that would compensate them for their land. We have no doubt that this was but another step in furtherance of the fraud. Upon the facts stated, the election to rescind was timely, and the respondents were in no wise prejudiced or misled. This view is supported by the following cases: Best v. Offield, 110 Pac. 17; Grewing v. Minneapolis Threshing-Machine Co., 12 S. D. 127, 80 N. W. 176.

The prudent protection of perishable property in itself creates but a slight presumption of ratification, and, when other fraudulent representations forming a material part of the contract are thereafter discovered, such act will not defeat the right of rescission. The condonation of a part of the fraud does not forbid a rescission for fraud discovered later and not condoned. Tarkington v. Purvis, 128 Ind. 182, 25 N. E. 879, 9 L. R. A. 607.

In harmony with the evidence, the court found that the appellants cannot read or write the English language, and that they, relying upon the respondent husband and Schutz, who under the evidence was in col