[No. 13924.

Department One.

June 18, 1917.]

#### H. S. Griffith *et al., Appellants,*v. Charles Gifford *et al., Respondents.**1*

Vendor and Purchaser—Rescission by Vendee—Misrepresentations. Falsely representing that there was no snapdragon on a farm is ground for rescission, where it appears that it is a noxious weed practically impossible to eradicate and that there were several large patches of it, materially reducing the value of the farm.

Same—Misrepresentations — Evidence — Sufficiency. The evidence sufficiently establishes false representations by the vendor that there was no snapdragon on a farm, where it appears that he knew the weed, shocked oats over the patches of snapdragon on the farm, and stated that there was none to his knowledge, and the vendees testified that they made inquiry of the vendor, who represented there was none on the place.

Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered September 16, 1916, in favor of the defendants, in an action for rescission, tried to the court.

Reversed.

*Zent*& *Powell,*for appellants.

1

Reported in 165 Pac. 874.

Main, J.

This action was brought to rescind a contract for the purchase of real estate on the ground of fraud. The trial in the superior court resulted in a judgment denying rescission, from which the plaintiffs appeal.

The facts out of which the litigation arose are these: For some time prior to the month of March, 1916, the appellants had owned and occupied a farm in Grant county, which they had sold a short time prior to entering into the transaction out of which this controversy arose. After selling the farm in Grant county, Mr. Griffith, in looking about for the purchase of another place, came to Latah, in Spokane county. This was in what is referred to in the evidence as the “Palouse country.” After coming to Latah, he met friends there who *23warned him against purchasing a farm upon which there was any “wild snapdragon.” After being so warned, he fully made up his mind not to purchase a farm if there was growing thereon any of that weed.

A few days after coming to Latah, Griffith was taken by one J. S. Farrelly, who lived in or near that town, six miles into the country to look at a place then owned by the respondents. Two or three days after having made this trip, Griffith met the respondent Charles Gifford in Latah and talked with him relative to the farm. During this conversation, Farrelly asked Gifford if there was any snapdragon on the farm, and received the reply, “Not to my knowledge.” Shortly after this conversation, or within a few days, Gifford took Mr. and Mrs. Griffith out to see the farm, and, as the Griffiths both testified, while they were driving along the highway adjacent thereto, they inquired whether there was any snapdragon on the place, and received the positive answer that there was not. Gifford denies this conversation. Upon this trip, the parties did not go over the place, but a few days later, Gifford and Griffith again visited the farm and walked over it. The place had been owned by the respondents for seven years prior to this time, and had been occupied by them during all of that time, with the exception of one year. The negotiations referred to resulted in a contract on March *30,*1916, by which the respondents sold to the appellants the farm, consisting of approximately seventy acres, for the sum of $8,300. Of this sum, $1,780 was paid in cash, and the balance was to be paid by the transfer of notes and a mortgage then owned by the appellants.

After making this contract, and on the 17th day of April, the appellants went into possession of the farm. Thereafter, and on the 28th day of that month, Mr. Griffith, while plowing preparatory to planting a crop, discovered what he thought might be wild snapdragon. He had never seen it before, as it did not grow where he had previously lived and farmed land. After inquiry, Griffith learned that the weed *24he had discovered was wild snapdragon. He then sought Mr. Gilford and demanded his money back, as well as rescission of the contract. This the latter, after considering for a few days, declined to do. Thereafter, and during the succeeding month, the appellants vacated the place and instituted this action. Neither party to the controversy being willing to exercise control over the farm during the litigation, by mutual arrangement, the management thereof was given to a third person.

The first question is whether the presence of wild snapdragon upon the farm was of such material consequence as to justify a rescission of the contract, providing there had been misrepresenthtion relative to its existence. The evidence shows that wild snapdragon is a noxious weed, and when it once appears upon a farm it is practically impossible to eradicate it. So serious is its presence considered that, when it appears, some farmers build a fence around it and cover the ground with salt. The appellants offered evidence to the effect that the presence of snapdragon upon a farm would materially reduce its salable value. The respondents offered no evidence on this question. The amount of snapdragon which was discovered upon the place after the appellants went into possession thereof consisted of approximately ten patches, located near the center of the farm. These patches varied in size from about eleven by thirteen feet down to places where there was only an individual plant. The party to whom the management of the place was committed during the pendency of this litigation testified that he had covered the three larger patches with tar paper, and that it took about two hundred and fifty square feet thereof. One of the witnesses, testifying for the respondents, referred to a patch of snapdragon six feet across as “quite a large patch.” Taking into consideration the character of the weed and the difficulty, if not the impossibility, of its total extinguishment, as well as the size and number of patches, together with the fact that the presence of such weed will materially reduce *25the value of a farm, we cannot hold that a misrepresentation relative thereto would be upon an immaterial matter such as would not justify the rescission of a contract.

The next question is whether there was a misrepresentation. The trial court made no formal findings of fact and conclusions of law, but recited in the judgment that wild snapdragon was growing upon the farm in the fall of the year 1915. The evidence shows that this weed has a distinctive flower and a pronounced odor, especially when cut or bruised. During the year 1915, the portion of the farm where the snapdragon was produced a crop of oats. When this crop was harvested, Mr. Gifford testified that he shocked the oats, and admitted that he shocked the oats over the very place where the snapdragon was found by Griffith. The stubs from which the plant had been cut, along with the oats, were still on the ground during the following spring. If Griffith, who had never seen snapdragon before moving upon this farm, was able to discover its presence there within twelve days after he took possession, and at a time of year when its discovery would be much more difficult than when the flower would appear later in the season, it does seem strange that its presence there was not known to the former owner, who admitted that he knew what snapdragon was when he saw it. The testimony of the Griffiths on the one side, and Gifford on the other, as to the conversation relative to snapdragon, hereinbefore referred to, cannot be reconciled. It might be said that a way of reconciliation could be found by assuming that the Griffiths might have confused this conversation with the previous conversation occurring in Latah, where Gifford admits that he stated that there was no snapdragon upon the place to his knowledge, but this assumption would overlook the fact that Mrs. Griffith was not present at the previous conversation. It seems altogether reasonable that the Griffiths, after having been warned relative to purchasing a farm with this weed upon it, and after having determined not *26to purchase such a farm, should inquire specifically in relation thereto. The trial judge, in seeking to reconcile this conflicting testimony, thought that the Griffiths might have confused the conversation that they testified to as occurring upon the highway adjacent to the farm with the previous conversation in Latah, but doubtless overlooked the fact, as already pointed out, that Mrs. Griffith was not present at that conversation.

We cannot escape the conclusion that, under the evidence in this case, the appellants were entitled to a rescission of the contract. The rule undoubtedly is, as pointed out by the respondents, that fraud, where charged, must' be established by clear and convincing evidence, but we think the appellants have met the requirements of this rule.

The judgment will be reversed, and the cause remanded with direction to the superior court to enter a judgment in favor of the appellants.

Ellis, C. J., Chadwick, Morris, and Webster, JJ., concur.