Opinion of the Court-DUNBAR, J. [16 Wash. the land at that time, and no judgments against Bennett which would constitute a lien against his real estate, surely he might then be dropped from further consideration, and it would not become the duty of the purchaser to further investigate Bennett's legal responsibility or transactions. In other words, he would not be interested in any suits which might be brought against him after the title had passed from him by deed. The title, then, having been uncontradicted in Bennett at the time of the transfer of the execution of the deed by him to Irwin, and there being no judgments against Irwin which would constitute a lien on his real estate at the time that the mortgage was executed from Irwin to the respondent, and Irwin not having been a party to the actions in which the lis pendens were filed until after the mortgage was executed to the respondent, and respondent not having been made a party to the actions against Bennett, we think that the court rightfully concluded that the respondent was not bound in any way by the actions brought by these appellants against Bennett or by the writ of attachment or lis pendens which was filed in that case. It is next contended by the appellant that the respondent had actual notice of the pendency of the actions against Bennett, and the contention that the transfer from Bennett to Irwin was fraudulent and that he was therefore bound, even conceding that there was no constructive notice given. We have carefully examined the testimony on this point, but we scarcely think there is sufficient to warrant the conclusion that the respondent had actual notice of the scope of the suits against Bennett. Mr. Snell testifies that when he saw Johnson, the respondent, in February, and told him of these suits, Johnson said Mar. 1897.] he knew of them the November before. It does not The other objections raised by the appellants in regard to the proof of the amount due we think are not well sustained by the record, outside of the fact that the finding of fact in that respect was not excepted to. The judgment will be affirmed. SCOTT, C. J., and ANDERS, REAVIS and GORDON, JJ., concur. [No. 2395. Decided March 27, 1897. WEST SEATTLE LAND AND IMPROVEMENT COMPANY, AMENDMENT OF PLEADING-FALSE REPRESENTATIONS TIONABLE. 38 560 16 665 The refusal of the trial court to allow an amendment to the answer in a cause is not ground of reversal, in the absence of a showing of abuse of the discretion lodged in the court in the matter of amendments. Representations made by the seller of real estate to induce a purchaser to buy, although false, are not ground for rescission of the contract of purchase, when there was no fiduciary relation existing between the parties, and when the truth or falsity of the representations could have been readily ascertained by the purchaser by investigation on his part. The representations of a vendor of lots in a new town site as to what improvements the owners were going to make in connection therewith, fall under the category of expressions of opinion, and not of representations of material facts. 41 215 Appeal from Superior Court, King County.-Hon. J. W. LANGLEY, Judge. Affirmed. Byers & Byers, for appellants: A purchaser has a right to rely upon representations of the seller as to facts not within the purchaser's knowledge. Bank v. Hiatt, 58 Cal. 234. The representation of the actual cost of property is the representation of a fact that is actionable. Teachout v. Van Hoesen, 14 Am. St. Rep. 206 (40 N. W. 96); Sandford v. Hardy, 23 Wend. 260. It was not necessary that the false representations should constitute the sole inducement to the defendants to make the purchase and execute the mortgage. It is enough, if without the false representations the contract would not have been made. Mudsill Mining Co. v. Watrous, 61 Fed. 163; Matthews v. Bliss, 22 Pick. 48; Cooley, Torts (2d ed.) p. 587; Champlin v. Laytin, 18 Wend. 407 (31 Am. Dec. 382). If we have shown that the representations have been made and that they were false, and either that Ewing knew them to be false or that he had no reasonable ground for believing them to be true, the law will impute to him a fraudulent intent, and we have sustained our defense. 3 Wait, Actions and Defenses, pp. 438, 439; Collins v. Denison, 12 Metc. 549; In re Hays' Estate, 28 Atl. 158; Leicester Piano Co. v. Front Royal, etc., Imp. Co., 55 Fed. 190; Kitchen v. Rayburn, 19 Wall. 254. Struve, Allen, Hughes & McMicken, for respondent: A promise or expression of intention is not a representation, and the person making it cannot be held responsible as for a deceit, even though he had no intention of living up to it. Gallager v. Brunel, 6 Cow. Mar. 1897.] Opinion of the Court- Dunbar, J. 346; Gage v. Lewis, 68 Ill. 604; Lexow v. Julian, 21 Hun, 577; Long v. Woodman, 58 Me. 49; Burt v. Bowles, 69 Ind. 1; Watkins v. West Wytheville Land & Imp. Co., 22 S. E. 554; Day v. Fort Scott, etc., Imp. Co., 38 N. E. 567; Saunders v. McClintock, 46 Mo. App. 216; Warner v. Benjamin, 62 N. W. 179. The opinion of the court was delivered by DUNBAR, J.-This is an action brought by respondent against appellants to foreclose a purchase money mortgage. The defendants (appellants) set up as a defense and by way of counterclaim the fraud of the plaintiff in selling them the property and inducing them to execute the mortgage on which the suit is brought. The false and fraudulent representations by which they were induced to purchase the said premises and execute the mortgage, as set up in defendants' answer, are briefly as follows: That Thomas Ewing, president and general manager of the plaintiff, represented to the defendants that the plaintiff would grade the streets without cost to defendants; that the plaintiff then owned a thirty thousand dollar ferry boat which was being repaired in San Francisco and would soon be placed on the route between Seattle and West Seattle (the property in question being located in West Seattle), and that the residents of West Seattle would have a fifteen minute service on the ferry boat between West Seattle and Seattle during certain hours of the day; that the plaintiff owned the railroad then being constructed between Seattle and West Seattle, and that the residents of the latter place would be sold tickets good on ferry boat and railroad train alike; that the plaintiff had made arrangements for, and would in a short time erect and put in operation, a gas and electric light plant Opinion of the Court-DUNBAR, J. [16 Wash. and would furnish gas and electricity to the residents of West Seattle; that the house built on the lots purchased by the defendants had cost the plaintiff more than $6,000; that plaintiff had selected a site for, and would soon erect thereon, a large hotel costing $500,000; that the plaintiff had donated a site for a Presbyterian church and that a church would very soon be built thereon; that these representations had been relied upon by the defendants, and that they had not been fulfilled by the plaintiff. This sale was made and the mortgage and notes executed during the first part of August, 1890. The consideration was $8,000, a portion of which was paid down and the balance. was paid afterwards, to wit: November 14, 1891, $1,000; November 24, 1891, $1,000; February 15, 1892, $200; April 12, 1893, $211.30. So far as the contention of appellants is concerned, that the court erred in refusing to allow an amendment to the answer, this was a motion addressed to the discretion of the trial court, and under the circumstances of the case we are not able to say that that discretion was abused. Nor do we think the court committed error in the admission or rejection of testimony. We think, under the rule announced in Washington Central Improvement Co. v. Newlands, 11 Wash. 212 (39 Pac. 366), there was no testimony introduced in this case sufficient to have put the plaintiff upon its reply, if indeed the answer was not legally subject to a demurrer. In the case above referred to the respondent brought suit against the appellant on a contract for the purchase by him of certain lots and upon his notes given for the purchase price. The appellant, as in the case at bar, admitted the making of the notes and set up an affirmative defense, alleging deceit and false repre |