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the Santa Fe Company, in their arrangements for the construction of the Wichita & Western Railroad Company, engaged in transactions or incurred liabilities prohibited by the Santa Fe charter; nor are we to infer, in the absence of evidence, that they were acting contrary to the purposes for which that corporation was created. Therefore, after the charter of the Wichita & Western Railroad Company had been filed, all the presumptions are that whatever the Santa Fe Company did towards the construction of the road from Wichita to Kingman was done under and in accordance with the provisions of the statute, either as a stockholder or bondholder, or the guarantor of bonds of the Wichita & Western Company. The vice in the instruction excepted to consisted in permitting the jury to find that at the time of the injury complained of the Wichita & Western Railroad Company might have been the servant of the Santa Fe Company. This qualification or addition to the instruction should have been omitted.

We have carefully examined Bridge Co. v. Woolley, 78 Ky. 523, but that case is easily distinguishable from this. In that case, the states of Kentucky and Ohio had each created a corporation which was given the same name. The object was to construct a bridge across the Ohio river between Newport and Cincinnati. The corporations entered into a written contract to run the business connected with the use of the bridge; and in that case it was held that the employment by the Kentucky corporation of an attorney to attend to the joint interests of the corporations was binding on both corporations.

In our former opinion we assumed the general doctrine that one railroad company might be the servant or agent of another, to have application in this case. This declaration we now correct, as this principle has no application in this case, upon the facts disclosed upon the trial.

Where a parent company, operating a long line of road in the state, takes the necessary steps to construct an auxiliary railroad for the purpose of a local line, in the name of another company, and, in strictly pursuing the provisions of the statute, merely furnishes aid as a stockholder or bondholder, or a guarantor of bonds, to the auxiliary company, and such auxiliary company constructs its road in its own name, it is not the servant or agent, in such construction of its road, of the parent company; and the parent company is not, on account of being a stockholder or bondholder, or guarantor of bonds, of the auxiliary company, responsible for the negligence or other default of the auxiliary company in constructing its road in its

own name.

The syllabus of the former opinion will accordingly be qualified The motion for a rehearing is allowed. The judgment heretofore rendered in this court will be set aside, and the judgment of the district court will be reversed, and the cause remanded for further proceedings.

(All the justices concurring.)

SUPREME COURT OF WASHINGTON TERRITORY.

(2 Wash. T. 369)

PHINNEY V. HUBBARD.

Filed August 5, 1885. VENDOR AND VENDEE-FRAUD-SALE OF LOTS BY MAP.

Findings of referee and of district court reviewed, fraud of vendor held sufficiently shown, and judgment in favor of vendee for value of lots intended to be purchased, affirmed.

Appeal from district court, Third district.
T. H. Humes, for appellee.
R. Osborne and I. C. lluines, for appellant.

WINGARD, J. This is an action brought in the court below by the appellee, W. B. Hubbard, against the appellant, G. C. Phinney, to recover damages for certain false and fraudulent representations made by appellant, that induced appellee to purchase certain real estate. The allegations of the complaint, in substance, are that on the thirteenth of October, 1882, the plaintiff, (appellee in this court,) at the request of the defendant, (appellant,) entered into negotiations to purchase certain lots described by defendant as lots 10, 11, and 12, block 6, northern addition to the city of Seattle; that the defendant, in order to induce plaintiff to purchase said lots, took plaintiff upon, showed and pointed out to him, lots 4, 5, and 6, Norti Seattle, and then and there falsely and fraudulently represented that the lots so shown were the lots 10, 11, and 12 which he desired to sell; that the plaintiff, confiding in said representations, and believing the same to be true, purchased the lots described by defendant as lots 10, 11, and 12, northern addition to Seattle, supposing and believing them to be the lots so shown and pointed out to him, and then paid to the defendant the sum of $150, the full purchase price agreed upon; that said lot 10 is worthless, and that said lots 11 and 12 do not exist; that said lots 4, 5, and 6, North Seattle, (the lots shown,) are worth the sum of $1,500; alleging damage by reason of such false and fraudulent representations in the sum of $1,500, and praying judgınent therefor.

To this complaint the defendant answers by first denying, specially and generally, all the allegations of the complaint, except the payment of the sum of $150. The defendant then pleads this matter, which he terms a second defense.

Second. For a second and further defense to plaintiff's said complaint the defendant answers, adiressing the same to the lion. ROGER S. GREENE, judge of said court, that heretofore, to-wit, October 13, 1882, defendant was the owner, and had under contract, and the control and sale, of a large number of lots in the northern addition to the city of Seattle; that plaintiff (esired to purchase three lots in said addition, and pointed the ones selected by him on the map of said addition; that defendant understood and believed that the lots so selected by plaintiff to be lots 8, 9, and 10, in block 6, in the northern addition to Seattle; but in taking off the description there was a mistake made in the description of said lots so selected, and lots 10, 11, and 12 in the northern addition to Seattle were described and written in the bond for a deed, which defendant did, on October 13th, execute and deliver to plaintiff, and that the plaintiff did pay to defendant the sum of $150; that defendant supposed and believed that he had contracted to convey to the plaintiff the said lots 8, 9, and 10, in block 6, northern addition to Seattle, which lots he then owned, and reserved the same for plaintiff, and had no knowledge of and did not discover the said mistake until the bringing of this action; that the description contained in said bond for deed were lots 10, 11, and 12, in the northern addition to Seattle, and not 10, 11, and 12, in block 6, northern addition to Seattle, as plaintiff has alleged in his complaint; that there are no lots bearing the description contained in said bond for a deed given by defendant to plaintiff; that defendant practiced no fraud upon and made no false or fraudulent representations to plaintiff, but that said erroneous description was the result of inadvertence and mistake; that plaintift (defendant) has been ready and willing at all times since the discovery of said mistake to pay back to plaintiff the said sum of $150, with interest thereon from the date of payment of the same to defendant, (plaintiff;) that defendant offered to pay said amount to plaintiff as soon as said mistake was discovered, but that plaintiff (defendant) refused to accept the same; that on March 28th this defendant tendered and offered to pay to plaintiff the sum of $190 in gold coin; but that plaintiff, by his attorney, refused to accept the same. Defendant alleges that said sum of $190 was sufficient to pay plaintiff the said sum of $150, with interest from said October 13, 1882, and all costs to this action to date.”

After alleging non-maturing of the bond for deed, and charging that the action was instituted for the purpose of annoying and harassing defendant, and for purposes of extortion, defendant prays that the contract be rescinded, and for costs.

Plaintiff replied to this part of answer, denying any mistake in the contract of sale; alleging that defendant was, at time of sale and for a long time prior thereto, engaged in the business of buying and selling real estate in the city of Seattle; that he falsely and fraudulently made the representations charged in plaintiff's complaint with intent to deceive plaintiff, and that they did deceive him to his damage, as alleged.

The case was, with the consent of both parties, sent to a referee, who reported his findings to the court as follows:

(1) On the thirteenth (lay of October, 1882, the defendant was, and for eight months prior thereto had been, in the real estate and insurance business, having his office and place of business at Seattle, King county, Washington Territory.

(2) On that day defendant entered into negotiations with plaintiff for the purchase by plaintiff of certain lots of land situate in the county of King, and territory of Washington, described as lots ten, (10,) eleven, (11,) and twelve, (12,) in block six, (6,) northern addition to the city of Seattle, in said county, at defendant's said office, and then and there pointed out to plaintiff said lots of land on Harris' map of Seattle, and to effect said sale to plaintiff took him out to and showed to him lots 4, 5, and 6, in block 6, of North Seattle, which was then owned by David T. Denny and wife, and then and there knowingly, falsely, and fraudulenty represented to plaintiff that they were the lots of land which defendant had pointed out to him on the map as lots 10, 11, and 12, block 6, of northern addition to Seattle, and which he wished to sell.

(3) That plaintiff and defendant then returned to defendant's office, and the plaintiff then and there, confiding in said representations of defendant, and believing them to be true, agreed to purchase said lots 10, 11, and 12, block 6, northern addition to Seattle, supposing and believing these lots to be lots which defendant so pointed out and showed to him, and then and there received from said defendant his bond to convey said lots 10, 11, and 12 of the northern addition to Seattle, W. T., by good and sufficient conveyance, provided plaintiff should, on or before that day, have paid to said defendant the sum of $150, gold coin, the price agreed upon; and then and there paid to said defendant said sum of $150, and took his receipt for the same. In the receipt the lots are described as lots 10, 11, 12, block 6, of northern addition to Seattle, W. T. In the bond the word and figure “block 6” are omitted. They refer to one and the same description of land, and are parts of one and the same transaction.

(4) The said lots 4, 5, and 6, in block 6, North Seattle, were, on said October 13, 1882, and are, worth the sum of $1,500 in money.

(5) The said lot 10, block 6, northern addition to Seattle, was and is worthless, and the said lots described as lots 11 and 12, block 6, northern addition, did not then and do not exist.

(6) Plaintiff first discovered in December, 1882, that the said lots of land so sold by defendant, and described in said bond and in said receipt, were not the lots of land pointed out and shown to plaintiff by defendant at time of sale.

(7) Defendant, on March 28, 1883, tendered to T. II. IIumes, Esq., attorney for plaintiff, and offered to pay the plaintiff, the sum of $190 in gold coin, which said attorney refused to accept. Prior to that date, and in December, 1892, defendant stated to plaintiff that if he wils not satisfied le would give him his money back and 2 per cent. interest per month, which was not consummated.

(8) That defendant, on said thirteenth of October, 1882, knew the location of block 6, northern addition, and the number of lots contained therein; that he had in his possession maps showing the different additions to Seattle, with their location, (excepting said northern addition;) that he was informed as to location of lots 4, 5, and 6, block 6, North Seattle, and on said thirteenth of October, 1882, knowingly, willfully, and fraudulently took plaintiff upon and showed to him said lots 4, 5, and 6, block 6, North Seattle, and then and there knowingly, falsely, and fraudulently represented to plaintiff that said lots 4, 5, and 6, block 6, North Seattle, were said lots 10, 11, and 12, block 6, North Seattle, which he desired to sell; that said representations were false, to the knowledge of defendant, and were made to indice plaintiff to purchase the same, and plaintiff relied upon them as true, and was thereby led to purchase them.

(9) That said plaintiff in said transaction was guilty of no negligence or fraud, and the misrepresentations as to said lots were not made simply by mistake.

Exceptions were filed to this report, and after argument the district court found fact and conclusions of law, upon which judgment was entered for the plaintiff below for $1,450. Defendant below appealed.

After a careful review of all the evidence we think the findings of fact of the referee are fully sustained thereby, except as to the fifth finding. In lieu of said fifth finding we adopt the eighth finding of the court below as follows:

"That the said lot 10, block 6, northern addition to Seattle, was at the time mentioned in complaint, and is, worth the sum of fifty dollars, and the said lots 11 and 12, block 6, northern addition to Seattle, did not then and do not

exist."

Let the judgment of the court below be affirmed.

TURNER, J., concurs.

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