Mar. 1910]

Opinion Per MORRIS, J.

[No. 8561. Department One. March 1, 1910.]

STONEWALL J. LINDSAY et al., Respondents, v. HENRY A. DAVIDSON et al., Appellants.1

VENDOR AND PURCHASER-RESCISSION BY VENDEE-FRAUD. A trade of real estate may be rescinded by a vendee who took land lying at a distance without having seen it, relying upon representations, known by the vendors to be false, to the effect that 100 acres were under cultivation and 21 acres irrigated, with orchard, etc., where there were only 25 acres under cultivation and no irrigation or orchard.

Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered July 1, 1909, upon findings in favor of the plaintiffs, in an action for equitable relief. Affirmed.

Samuel Edelstein, for appellants.

Poindexter & Moore and George H. Armitage, for respondents.

MORRIS, J.-Appeal from a decree vacating a decd from respondents to appellant Bowman.

The respondents, on March 16, 1909, were the owners of two hundred and forty acres of land, in Ferry county, of the value of $2,400, but resided at Potlatch, Idaho.

day respondent Stonewall J. Lindsay, being at Spokane, called at the office of appellants, who were engaged in the real estate business as the Davidson Investment Company, with the purpose of listing the Ferry county lands for sale. During the negotiations, appellant Bowman represented to him that W. S. Nier, owning one hundred and sixty acres of land in Franklin county, one hundred acres of which were under cultivation, twenty acres irrigated, and five acres in alfalfa, all fenced and improved with dwelling house, barn and orchard, having also a dam for impounding water for irrigation, which had been constructed at a cost of $500, had 'Reported in 107 Pac. 514.

Opinion Per MORRIS, J.

[57 Wash. listed the same with appellants for sale; that these lands were of the value of $3,500, and were subject to a mortgage of $1,000; and suggested an exchange. Bowman had no knowledge of the Ferry county lands, nor was Lindsay familiar with the Franklin county lands. The court finds that each of the parties, relying absolutely upon the description of the respective lands, and believing all the representations respectively made by each as to the character, value, and condition of the two pieces, finally agreed upon an even exchange. Lindsay and wife thereupon executed a deed of the Ferry county lands, in which Bowman is named as grantee, but which they thought was for the use and benefit of Nier; and Bowman gave Lindsay a deed executed by Nier and wife November 12, 1908, in which the name of the grantee had been left blank, the blank being filled by inserting the name of Stonewall J. Lindsay as grantee.

The court further finds that subsequently Lindsay visited the Franklin county land, and then for the first time discovered that the representations made by Bowman as to their condition and value were false; that only twenty-five acres were under cultivation, three acres in alfalfa, no part of the land under irrigation, no dam for the impounding of water for irrigation, no orchard; that the house and barn were of little or no value; that the greater portion of the land was incapable of cultivation, and that the value thereof did not exceed $1,000. It is further found that these false representations were made with full knowledge of their falsity and with intent to deceive, and that respondents would not have consented to the exchange except for their reliance upon the truth of the facts as represented to them by Bowman. It also appears that Bowman, under the impression conveyed to respondents that he was representing Nier in the exchange, demanded and received from respondents a commission of $60.

Upon Lindsay's return to Spokane he called on appellants and made complaint "that they had skinned" him. Bowman, he says, told him "to quit whining," and he would sell the

Mar. 1910]

Opinion Per MORRIS, J.

property and "get you out of it"; that he could not do anything with Nier because the Ferry county land had been taken out of their hands, but that he would see Nier and "see if we can't do something for you." Bowman's version of this conversation is that, when Lindsay said he wanted to trade back, "I said I didn't want to do boy's work that way. I thought you was a man that wouldn't squeal if you got it in the neck." It is also shown that Nier knew nothing about the transaction, and had had no connection with the Franklin county land since November 12, 1908, when he traded it to appellants. The findings of the court, as we have set them forth, are amply sustained by the evidence and support the judgment in favor of respondents. In addition to the representations as made by Bowman, we find a circular issued by appellants in which the Franklin county land is described as

"3500-160 acres described as follows: 100 acres under cultivation, 20 acres under irrigation, 5 acres alfalfa, all under fence, house, barn and orchard. Mtg. $1000. 3 year. 8 per cent, located near Washtucna";

which was given by appellants to Lindsay at the time of his first visit to their office. All that need be said upon the law of the case is a reference to what was said by this court in actions of this character in the late cases of Wooddy v. Benton Water Co., 54 Wash. 124, 102 Pac. 1054, and Bailie v. Parker, 56 Wash. 353, 105 Pac. 834, where it was held that a vendee may rely upon representations of his vendor where the property is at a distance, or where for any other reason the falsity of the representation is not readily ascertainable.

The above cases, amply supported by authority, are decisive of the case, and the judgment is affirmed.

RUDKIN, C. J., FULLERTON, CHADWICK, and GosE, JJ.,

concur.

[No. 8571. Department One. March 1, 1910.]

CHARLES W. ERICKSON, Respondent, v. GREAT NORTHERN RAILWAY COMPANY, Appellant.1

RELEASE AND DISCHARGE-EXECUTION-EVIDENCE-SUFFICIENCY. In an action for personal injuries sustained by a railroad brakeman, the evidence conclusively shows a valid release and settlement. barring the right to recover, where it appears that the plaintiff received $225 and signed a typewritten release and discharge, showing just above the signature a statement that he had read the release and fully understood it; that plaintiff must have been mistaken in his testimony that he received the money only as a donation and signed a blank sheet of paper so folded as to show only four blank lines; that the release signed could not have been so folded; that the nurse and physician, who witnessed the release, corroborated the defendant's claim agent in the statement that the release was read and signed by the plaintiff; and that plaintiff subsequently wrote letters referring to the settlement; no claim being made of fraud or that plaintiff was overreached or advantage taken of his condition.

Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered August 12, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for injuries sustained by a brakeman in a fall from a train. Reversed.

F. V. Brown, L. F. Chester, J. J. Lavin, and E. M. Carr, for appellant.

Plummer & Latimer, for respondent.

MORRIS, J.-Respondent brought this action to recover for injuries sustained in falling or being thrown from one of appellant's trains upon which he was acting as brakeman, the negligence alleged being excessive speed of the train and poor track and roadbed. Appellant denied negligence, and among other affirmative defenses pleaded a full settlement and release upon the payment of $225. Respondent admitted

'Reported in 107 Pac. 365.

Mar. 1910]

Opinion Per MORRIS, J.

receiving such sum from the company, but denied that it was given him in any release or settlement of his claim against the company, and averred it was a voluntary payment by the company, given as a donation because of his loss of time and a friendly feeling toward him, and because it was desired to retain his good will and to have him enter its employment upon his recovery. At the conclusion of the evidence, the appellant challenged its sufficiency to sustain a verdict; which motion being denied, the case was submitted to the jury, and a verdict was returned in favor of respondent in the sum of $1,250. Appellant then moved for judgment non obstante veredicto, which was denied, and it then appealed, the questions presented here being the correctness of the court's ruling upon these two motions.

In determining these questions, the only thing that need be considered is the alleged settlement and release. The injury happened June 14, 1907, at or near Shelby, Montana. Respondent was taken to Whitefish, where he was placed in a hospital and given medical aid and attention. On July 19, respondent says, he was called on by Mr. Bissell, the general claim agent of the company, who told him that he had talked with the doctor concerning his condition and learned that he was all right; that he had no claim against the company, but that the company "always treat the boys all right and I will give you as a donation $225"; that Bissell wrote a check for that amount, which he indorsed, and Bissell then left the room and soon returned with $225, which he gave to respondent and, saying he would have "to have something to show what he had done with the money," he produced some papers and requested respondent to sign them; that the papers were folded up, but there was nothing on them, and that the paper signed by respondent was a blank; that at the time no one was present except his wife, Bissell, and himself.

The facts as disclosed and conclusively shown in the record, make it appear that respondent was very forgetful in giving