, 1892-05-07
WANTED DAMAGES.
An Appeal From the Superior
Court Of King
A Real Estate transaction in the
City OF Seattle i'm which an Ap-
peal was Taken and the Judg-
mnezat Affirmed.


nnesst Affirmed.
Concluded from Friday.)
It is true that the rule laid down by EY-
ans VS.. Edmands falls within the second
class of cases mentioned by Mr.. Pomeroy,
viz: THE making an untrue statement
of the truth of which the party of course
has no knowledge, and which he does not
even believe to be true, is tantamount to
the making of a statement which the party
knows to be untrue, = and might not have
been pertinent to the case the court was
trying; but it also quotes the language Of
the court in Ainslie VS.. Medleycott, 8 We
sey 21, where the court used this language.
liz without knowing that it is not true he
takes uppn himself to make representa-
ton to another, upon the faith of which
that other acts, no doubt he is bound (;
though his mistake was perfectly lnno-
cent. And whether ornot the court lacked
discrimination in the cases cited, there can
be no question as to what it actually de-
cided. In the case at bar the boundaries
were pointed out upon the plat to which
the purchaser was referred. The plat rep
resented the lots to be one hundred feet in
depth, the recorded plat is the same; on
the face of the earth everything was Tegu,
lar, and everything tended 10 mislead the
purchaser. 1T is true he employed an at
torney to look up the title, and the attor-
ney was also deceived. But that is no rea-
son why a grantor should be allowed to
retain the fruits of his misrepresentations.
On such theory Hanford, the original
grantor, who by careless mistake in lay
ing out the addition, laid it out on land
which he did not own, and who sold it
through the representations of plat
which was regular on its face, could retain
the fruits of his mistake because the ven
dees did not discover it before they pur-
chased. According to the testimony of the
defendant it will be seen, either that abso-
lutte reliance was placed on the plat, or that
the defendants was wilfully trying to mis-
lead the purchaser.
DISCRIMINATION of Mr.. Stinson-Ques-
tiOn-Then you made no representation
whatever to Mr.. Sears about the size of the
lots or blocks
Answer-Not to my knowledge. No.
@. Then he did not ask you anything
about the size Of the lots or blocks
A. Yes, sir.
@. You kept quiet2
A. No, sir; l referred him to the abb
stract and the plat. ] told him the plat
said they were 25 by 100.
@. You told him they were 25 by 100,
did you?
A. I told him the plat said so.
Q: You always said the plat SAID SO, re-
ferring him to the plat, Didn't you say to
him the lots were % by 100?
Q. You said the lots were rs by 100 ac-
cording to the plat2
"a. / referred him entirely to the plat.
/ knew nothing about the lots myself.
1t can easily be understood that if the
defendant had told him dozen times in
positive terms that the lots were one humid
red feet in depth it would not have tended
to mislead him as much as to refer him to
the plat, which is supposed to truthfully
represent the lots, and which supplies the
information ordinarily relied upon in the
purchase of town lots.
Davis VS.. Nuzum, 40 N. w. 497, cannot
be distinguished in principle from this case
SO far as liability of the grantor is con
cerned. Appellant seeks to distinguish
Doyle VS.. Hoard, s, w. Rep. 241; Tyler
VS.. Anderson, N. 3. Rep. SEQ; Smith VS..
Kirkpatrick, Z S, q. Rep. 258, cited by re-
spondent by showing that they were all
cases where land had been sold at a stip-
ulated price per acre, and there proving to
be fewer acres than had been supposed, an
attainment of the total estimate price was
allowed in actions for the balance of pur-
chase price. There can be no difference in
principle SO far as maintaining any distinc-
tion between cases where the mistake was
wiful, and where it was innocent, from the
case at bar In those cases this purchaser
did not get the number Of acres he CON
tracted for. In this case the purchaser did
not get the number of feet he contracted
for. The essential cause of complaintin all
the cases. is that the purchaser by reason of
the misrepresentation of the grantor did
not get the amount of land he paid for. 1t
might, or might not, be that in one case it
would be more difficult to ascertain the
damages than in the other, but certainly
that could not in any manner affect OF
change the responsibility This case we
think also falls within the decision of
Hanson vs. Tompkins, decided bv this
court, reported in End Washington SOB.
Without further reviewing the case we.
think most of the authorities cited by re-
spondent, with many others, sustain this
view; and as it accords with our view of
what is right and fair we adopt it.
We think the instruction of the court
on this branch of the law was substantial
ly correct. AS to the measure of damages
in a case of this kind where no fraud is
alleged, we will lay down the following
rule: The Jury, assuming the value of the
whole tract to be the contract price, must
find how much less than the contract price,
the land was worth at the time of the sale,
by reason of the deficiency; and that
amount will be the plaintiffs damages.
For instance, if in tn is case that portion of
the block which was rightfullY conveyed
was found to be worth only one thousand
dollars, taking as a basis of estimate the
value of the whole block at two thousand
dollars, the plaintiffs Is damages will be one
( thousand dollars. While no rule can be
announced which will guarantee perfectly
equitable adjustment in all cases, we think
the foregoing Is sustained by authority,
that it administers substantial justice, and
we therefore endorse it. And we think the
instruction Of the court on this subject
substantially announced the rule laid down
above. The instruction was somewhat
lengthy on this point, with some repetition,
and it might be possible that some express
sion used would admit Of little broader
10 flrI oil
gether it is pretty certain that the jury were
not nisled blythe court; and the hypotheti-
cGl question as to the value, which was
asked the Witnesses, indicates that the
damages were proven, and that the esti-
mate oil the jury was made upon the
proper theory of the case. So far as the in
structions asked for by the defendant are
concerned, those that had not been already
substantially given by the court, did not,
in our opinion, state the law, and were
properly refused.
Finding no substantial error the iudg-
ment Is affirmed. DUNBAR, j.
We concur: Anders, G. T., Stiles, il,
Hoyt, j., Scott, ].
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