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Cain & Hurspool, for appellants. Skuse & which were false; that such representations Morrill, for respondents.

were known by defendants to be false when made, and were so made by said defendants to induce plaintiffs to enter into said agreement; that the plaintiffs in acting on said representations were ignorant of the falsity of the said representations, and reasonably believed them to be true; that the plaintiffs had expended $416.70 in the care of the farm; that they were not negligent in the care of said premises and property during the time they were in possession of the same; that the defendants did not suffer any damages therefrom; that plaintiffs were not familiar with fruit growing, or with fruit trees, or with the kind of property which was the subject of the agreement in question; that this was known to the defendants during the time the negotiations were pending, and that as soon as plaintiffs ascertained that the representations made to them were false, they served notice upon the defendants of the rescission of the contract. Upon these findings, conclusions of law were found, and judgment was entered in favor of the plaintiffs for recovery of the money paid, for a rescission of the contract, for the sum of $416.70, with interest from and since the 1st day of March, 1909, and for costs. From this judgment this appeal is taken.

The testimony shows that the plaintiff William J. Best examined this farm in September; that at that time he stayed upon the farm about two days, in company with the defendant James W. Offield; that a great deal of the time it was raining hard, so that it was difficult to get around on the premises; that between that time and before the final execution of the contract Emma L. Best visit

DUNBAR, J. This is an action by William J. Best and wife for the rescission for fraudulent misrepresentation of a contract of sale, whereby plaintiffs agreed to purchase and the defendants J. W. Offield and wife agreed to sell a certain orchard and land in Garfield county, Wash.; the plaintiffs seeking to recover the amount of the purchase money already paid, together with expenses incurred in connection with the purchase and expenditures made upon the land while they were in possession. The misrepresentations set up in the complaint and relied on at the trial were (1) misrepresentations as to the amount of land in the different varieties of fruit in the orchard as a whole, and the amount of land in cultivation outside of the orchard; (2) misrepresentations as to the quality of fruit grown in the orchard; (3) misrepresentations as to the whole number of acres of fruit embraced in the orchard; (4) misrepresentations as to the sufficiency of water for irrigation; and (5) misrepresentations as to the amount and character of the personal property included in the transaction. The defendants answered, denying the making of the misrepresentations alleged, setting up the fact that the plaintiffs inspected the orchard, made outside inquiries, and relied on their own judgment in making the purchase; and asking for a forfeiture of the contract of sale, on the ground that plaintiffs had failed to make the second payment under the contract, and had abandoned the land, and for damages for negligence and carelessness in pruning the vineyard and orchard. The case was tried to a jury on questions of fact. Certained the farm, her testimony being that she special interrogatories were submitted to the jury which, with the answers thereto, were as follows: "(1) Did the defendants James W. Offield and Nettie Offield, or either of them, at or before the making of the contract in question, make the plaintiffs, or either of them, any positive statements by which they, or either of them, materially misrepresented to the plaintiffs the true facts regarding the lands, premises, and property which was the subject of the contract in question? Answer: Yes. (2) How much expense did the plaintiff's incur in caring for and making improvements upon said land and premises, and in caring for and feeding the stock while in possession thereof? A. $416.70. (3) Were the plaintiffs, William J. Best and Emma L. Best, negligent in the care of said premises during the time they were in possession of the same, and, if so, how much were defendants damaged thereby? A. None." The court adopted the findings of the jury, and found that James W. Offield made representations to the plaintiffs in regard to material facts concerning the lands and premises which are the subject of the agreement in question, to wit, among other things, in regard to the number of acres thereof growing to fruit and grapes,

stayed there two days, and other testimony of the defendants being to the effect that she was there some days longer; that the contract was finally entered into in November, and that the parties plaintiff took possession of the farm about the 25th of November, and proceeded to go to work upon the orchard; that some time after taking possession, the plaintiffs began to suspect that misrepresentations had been made as to the number of acres embraced in the orchard, as to the quality of fruit trees, and as to the alleged representations that there was sufficient water to irrigate the premises; that in February, so strong had this conviction grown, that William J. Best, aided by an employé, undertook to survey the orchard by using a rude pole of some kind, and from such survey became satisfied that there was not the amount of land in orchard that had been represented, and gave notice to the defendants that he would rescind the contract; that subsequently to this and prior to the trial of the action, a survey was made under the supervision of a competent surveyor, and it was ascertained and proven, we think, beyond a question, that the amount of land in controversy instead of being 70 acres, was in reality 48.41

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acres, which included the grapes and the or- | misrepresentations, where the parties are chard generally. dealing at arm's length and the means of knowledge are as open to one party as to the other. But where the representations made are of material facts within the knowledge of the vendor, and entirely without the knowledge of the vendee, and where

Without reviewing in detail this testimony which we have particularly examined, we are satisfied that the special findings of the jury were justified, and that the findings made by the court were justified by the testimony; that, to say nothing of the representations the circumstances are such as reasonably concerning the quantity of water available call for a reliance thereon, the rule is that for irrigation, and the quality of the trees, the vendee may rely upon the representations it was represented to the plaintiffs that there of the vendor." The court was of the opinwere 70 acres set out in orchard, and that ion in that case that there was no confidenthey acted on this representation. This is tial relation existing between Mr. O'Connor positively sworn to by the plaintiffs and oth- and Mr. Van Horn; that the representations er witnesses who were present at the time made were expressions of opinion about facts the representations were made, and is in real-which were as open and obvious to the apity not denied by the defendant James W. Of-pellants as to the respondents, and that apfield. But his contention is that he did not state as a positive fact that there were 70 acres, but that he believed there were; that he was solicited by the plaintiffs to guarantee to them that there were 70 acres, and refused to do so, but told them that there were 70 acres, or about 70 acres. This statement in relation to the guaranty is emphatically denied by the plaintiffs and by other witnesses who were present at the time of the conversation spoken of, and the jury evidently believed and were justified, we think, in believing, that there was no such conversation had at that time, and that there was in effect a positive representation, upon which the parties plaintiff acted, that there were 70 acres cultivated to orchard.

In regard to the right of plaintiffs to act upon this representation there is quite a diversity of authority, and it is difficult to lay down a general rule, because there are particular circumstances controlling almost every individual case. Van Horn v. O'Connor, 42 Wash. 513, 85 Pac. 260, a case which is cited and relied upon strongly by the appellants, and which, in some of its circumstances, it must be said is similar to the case at bar, was where O'Connor represented to Van Horn that there were 240 acres of land in cultivation in the half section which Van Horn was purchasing, that there were some 30 acres more which could be cultivated, and that there would be not over 50 or 60 acres of waste land. These statements proved to be not exactly correct, and it was shown that there was not as much land under cultivation as had been represented. The trial court found that Van Horn had no cause of action, and that judgment was affirmed by this court, the court saying: "It is clear from appellant F. M. Van Horn's evidence that he obtained all the land which was shown him, and some which was stated did not go with the half section purchased. But the important and controlling question in the case is whether, after examining the land, appellant may complain because there is not as much tillable land as was represented by the respondents. This court has frequently held that, where representations are made as a

pellants had an opportunity to obtain the facts about which representations were made, and for that reason dismissed the action.

Conceding here the correctness of the principles of law laid down in that case, we think this case falls within the second principle announced, viz., that the representations made were material facts within the knowledge of the vendor and entirely without the knowledge of the vendee and where the circumstances reasonably called for a reliance upon such representations. It makes no difference whether the representations made were known by the vendor, as found by the court in this instance, to be false, or not. The effect on the purchaser would be the same, and if he had a right under all the circumstances to rely upon them, and did rely and act upon them, he can recover. There is a difference between the right of a vendee to rely upon the representations of the vendor where the means of determining the truth of the representations are at hand and it is easily determined, as in the case just cited, and a case of this kind where, as shown by the testimony, these plaintiffs were entirely unfamiliar with the fruit business, having come from a locality where orchards were not grown. They stated to the defendant at the time of the transaction that they knew nothing about the business, and when they were down examining the orchard, told him that they did not know a peach tree from a cherry tree, and in many instances he pointed out to them the difference in the trees.

This case falls more squarely within the rule of law announced in Wooddy v. Benton Water Company, 54 Wash. 124, 102 Pac. 1054. There the action was instituted to recover damages for false representations made by the defendants in the negotiations leading up to the contract of sale, both as to the quantity of land to be conveyed and the number of acres susceptible of irrigation from the water company's canal by gravity flow. The defendants represented that the tract to be conveyed by the water company contained 60 acres in all, and that the 60 acres were so situated in reference to the water company's canal that the entire tract could be ir

ated that in fact the tract contained only | when made, or else it was a matter difficult 52.64 acres, and 28.24 acres of this were of ascertainment, for the defendants had above the level of the canal and could not be owned and operated this farm for 30 years, irrigated therefrom. It also appeared that setting out in different years different porthe purchaser visited the land accompanied tions of this orchard, and if they in this long by certain of the grantors and viewed the period of operation were not aware of this premises in a general way. But it appeared discrepancy, it is unreasonable to hold these that the portion of the land which could not plaintiffs, who were entirely new to the busibe irrigated from the canal could only be as- ness, to a speedy determination of the area. certained by an accurate survey, as, we think, It was not a slight discrepancy in representait appears in this case that the area of this tion. The planting and rearing of an ororchard could only be obtained by an ac- chard to a bearing age is a costly business, curate survey. The court in the trial of that and the difference between 70 acres of land case, upon the close of the plaintiff's testi- planted to fruit trees and 48.40 is almost a mony, granted a nonsuit to the defendant. third difference in area. When it is admitted In reversing the judgment of the court, it that the purchase price of this land was $35,was said: "Nor can we agree with the court 000, and that practically all the value of the below that the doctrine of caveat emptor ap land was in the orchard, it is seen that the plies to the representations made by the re- plaintiffs were deprived of nearly one-third spondents to the effect that the entire tract of the value of their purchase as they underwas under the level of the canal and sus- stood it. So that the only debatable question ceptible of irrigation therefrom. Strong lan- in this case is, whether they acted with due guage has been used by this and other courts diligence in ascertaining the falsity of the in defining the duties of purchasers from representations. An orchard of forty-odd which it might be inferred that vendors have acres of growing fruit, especially when it is an unbridled license to lie and deceive, but in the irregular shape that this orchard was such has never been the law, and the ten- shown to be, is liable to mislead an inexperidency of the more recent cases has been to enced person concerning its area, and under restrict rather than extend the doctrine of all the circumstances of this case we think caveat emptor"-citing Strand v. Griffith, 97 that there was no such laches on the part Fed. 854, 38 C. C. A. 444, and Noyes v. Bel- of the plaintiffs as would prevent them from ding, 5 S. D. 603, 59 N. W. 1069, where it bringing this action for rescission upon the was said: "The unmistakable drift is towards grounds alleged. the doctrine that the wrongdoer cannot shield himself from liability by asking the law to condemn the credulity of his victim." Also citing 14 Am. & Eng. Enc. of Law (2d Ed.) 120, where the rule is stated as follows: "By the overwhelming weight of authority, ordinary prudence and diligence do not require a person to test the truth of representations made to him by another as of his own knowl

edge, and with the intention that they shall be acted upon, if the facts are peculiarly within the other party's knowledge or means of knowledge, though they are not exclusively so, and though the party to whom the representations are made may have an opportunity of ascertaining the truth for himself." The opinion concludes: "All the cases agree that the purchaser may rely upon representations of the vendor where the property is at a distance, or where for any other reason the falsity of the representations is not

readily ascertainable.

It appears that the orchard in this case was in an irregular or zigzag shape, and that it was a very difficult matter to determine its area. It is claimed that it was easily within the power of the plaintiffs to ascertain whether there were 70 acres in the orchard; but such ascertainment could have been made only by scientific survey. It plainly appears from the testimony that either the representations made by the defendants were false and were known by them to be false

The judgment will therefore be affirmed

RUDKIN, C. J., and MOUNT, CROW, and PARKER, JJ., concur.

(59 Wash. 440)

BRITTON v. WASHINGTON WATER
POWER CO.

(Supreme Court of Washington. Aug. 1, 1910.)
1. EVIDENCE (§ 121*)-"RES GESTÆ."
duce nervous excitement occurs, spontaneous
Where something startling enough to pro-
utterances of the parties present are admissible
as a part of the res gestæ, and the inquiry is
such circumstances as to induce the belief that
whether they were made at a time and under
they were not the result of reflection or premed-
itation.

[Ed. Note.-For other cases, see Evidence,
Cent. Dig. §§ 303-338; Dec. Dig. § 121.*
For other definitions, see Words and Phrases,

vol. 7, pp. 6130-6136; vol. 8, p. 7787.]
2. EVIDENCE (§ 126*)-RES GESTÆ.

A declaration by a person receiving a per-
sonal injury resulting in unconsciousness con-
tinuing for eight days made immediately on re-
gaining consciousness and before any opportuni-
is a part of the res gestæ.
ty for reflection as to the cause of the accident

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 372-376; Dec. Dig. § 126.*] 3. EVIDENCE (§ 125*)-RES GESTE.

The testimony of a physician that a person sustaining a personal injury resulting in unconsciousness was semiconscious on the fifth or sixth day after the accident does not make the declaration of such person made on regaining con

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

sciousness after the eighth day inadmissible as a part of the res gesta, but bears only on the weight of the declaration.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 369-371; Dec. Dig. § 125.*] 4. EVIDENCE (§ 121*)-RES GESTÆ.

The exclamation of a bystander contemporaneous with an occurrence is a part of the res gestæ.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 303-338; Dec. Dig. § 121.*] 5. EVIDENCE (§ 121*)-RES GESTE.

electric cars in the city of Spokane; that the car upon which the accident occurred has a vestibule, opening on each side on to steps used by passengers in entering and leaving the car; that the left door is kept closed, and the right one open, when the car is in service, and that the boy was stealing a ride on the step on the closed side of the car at the time he sustained the injury. The appellant asserts that the boy fell from the step, whilst he insists that he was kicked off the car by the conductor. This was the chief issue at the trial. It is conceded that,

Where, in an action against a street railroad company for injuries to a boy stealing a ride, the issue was whether the boy fell off the car or was kicked off by the conductor, a state-immediately after the accident happened, the ment of a passenger made at the time the boy was observed riding on the step of the car and as the conductor was pulling the bell cord and starting to open the door that the boy was off was admissible as a part of the res gestæ.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 303-338; Dec. Dig. § 121.*] 6. APPEAL and Error (§ 1056*)-PREJUDICIAL

ERROR-EXCLUSION OF EVIDENCE.

Though the trial judge has discretion in receiving and rejecting evidence admissible as a part of the res gestae, yet where it admits the declarations of one party as a part of the res gestæ it is prejudicial to exclude the exclamation of a bystander also forming a part of the res gesta contradicting the declaration of the party.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193; Dec. Dig. § 1056.*]

7. APPEAL AND ERROR (§ 232*)-QUESTIONS REVIEWABLE-RULINGS ON EVIDENCE.

Where the objection to evidence and the ruling of the court sustaining the objection were placed on the ground that the evidence offered was incompetent, the question whether the evidence excluded was responsive to the question propounded was not presented to the court on appeal.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 1430; Dec. Dig. § 232;* Trial, Cent. Dig. §§ 211-222.]

Department 1. Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by Roscoe Britton, a minor, by Sadie E. Fisler, his guardian ad litem, against the Washington Water Power Company. From a judgment for plaintiff, defendant appeals. Reversed.

Post, Avery & Higgins, for appellant. Plummer & Latimer, for respondent.

GOSE, J. This is a suit to recover damages for personal injuries sustained by a minor. The fact asserted and relied upon for a recovery is that Roscoe Britton, a minor 13 years of age, was stealing a ride on the step of one of the defendant's street cars, and that the conductor opened the door of the vestibule and kicked him off, causing him serious injury. There was a verdict and judgment for the plaintiff. The defendant has appealed. The admitted facts are that the appellant, at the time of the happening of the accident, was a common carrier of passengers for hire, and operating

boy was taken to his home in an unconscious condition.

The boy and his mother, who is also his guardian ad litem, were permitted to testify in substance that the boy remained unconscious for a period of eight days, when he became conscious, and at once stated to the

mother that the conductor kicked him off the car. The appellant contends that this was error. We think the statement was a part of the res gestæ. One exception to the rule excluding hearsay evidence is that, when something has occurred, startling enough to produce nervous excitement, spontaneous utterances of parties present are

admissible in evidence as a part of the res gestæ. It is not always necessary that the statement be made at the exact time that the shock occurs. The material inquiry always is whether the statements offered as evidence were made at a time and under such circumstances as to induce the belief that they were not the result of reflection or premeditation. They derive their admissibility and credibility purely from the circumstances out of which they arise. "The utterance must have been before there has been time to contrive and misrepresent; i. e., while the nervous excitement may be supposed still to dominate, and the reflective powers to be yet in abeyance." 3 Wigmore on Evidence, § 1750. "There is no imaginary line somewhere between a few hours and a few days, or a few weeks, on one side of which declarations in favor of a party are admissible in evidence, while on the other they are inadmissible. Unless such complaints form a part of the res gestæ they cannot be admitted. And if they are so far detached from the occurrence as to admit of the deliberate design and be the product of a calculating policy on the part of the actors, then they cannot be regarded as a part of the res gesta." Kennedy v. R. C. & B. R. Co., 130 N. Y. 654, 29 N. E. 141. "The time of the occurrence of the principal act is sometimes, by reason of some special circumstance, extended forward so as to make it coincident and connected with subsequent declarations by constructive continuity of time, as, for instance, when the party making the declarations having become uncon

scious at the very moment of the occurrence, boy is off!" This statement was stricken of the principal act, the declarations are on motion of the respondent. The boy testimade by him at the very moment of his re- fied that, when he got onto the step, the door gaining consciousness; under such conditions was closed, and that the conductor opened the act and the declarations are said to be the car door and kicked him off. The apsimultaneous by relation,. the declarations pellant insisted at the time the statement being spontaneous." 24 Am. & Eng. Enc. was stricken, and insists here, that it was Law (2d Ed.) p. 685. See, also, Walters v. admissible as a part of the res gestæ. The Spokane International Ry. Co., 108 Pac. 593. learned trial court, however, ruled that it In the case last cited we said that it is was inadmissible. In this, we think, he not always essential that the declarations committed prejudicial error. If the declaraand principal occurrence shall concur in tion of the boy is admissible as forming a point of time, but that in many instances part of the occurrence, as we have held, it the fact that a considerable period of time would seem to follow that the exclamation has intervened does not destroy their ad- of a bystander, contemporaneous with the ocmissibility as evidence. We further said currence, is also admissible. The exclamathat the circumstances of each case "should tions of third parties present are as much be carefully weighed by the trial judge in a part of the res gestæ as those of the parexercising his sound discretion." The con- ties themselves. 3 Wigmore on Evidence, § trolling consideration in each case is, Was 1755; Johnson v. St. Paul & W. Coal Co., the declaration a spontaneous, impulsive 126 Wis. 492, 105 N. W. 1048; Dale v. Colstatement of a fact? If so, it is a part of fax Consol. Coal Co., 131 Iowa, 67, 107 N. W. the occurrence and is admissible. Dixon v. 1096; Harrill v. South Carolina & Georgia Northern Pacific Railway Company, 37 Extension Ry. Co., 132 N. C. 655, 44 S. E. Wash. 310, 79 Pac. 943, 68 L. R. A. 895, 107 109; Gulf, C. & S. F. Ry. Co. v. Tullis, 41 Am. St. Rep. 810. Tex. Civ. App. 219, 91 S. W. 317; Seawell v. Carolina Cent. R. Co., 133 N. C. 515, 45 S. E. 850; Atlantic Coast Line R. Co. v. Crosby, 53 Fla. 400, 43 South. 318; Wharton on Evidence, § 202; 24 Am. & Eng. Enc. Law (2d Ed.) 685-6.

Tested by the principles we have stated, it is clear that the evidence was properly admitted. The declarations were made, as the witnesses assert, as soon as consciousness was restored. There had been no opportunity for reflection or deliberation. They were as much a part of the occurrence as if they had been made when the boy was raised from the street immediately after falling. So far as he was concerned, there was no conscious intervening time between the injury and the declaration.

The appellant criticizes the form of the questions, and urges that the evidence does not show that the statement was made as soon as the boy regained consciousness. We do not think a fair reading of the evidence warrants the criticism. The fact that Dr. Martin testified that the boy was semicon. scious on the fifth or sixth day after the accident, does not make the declaration of the boy inadmissible. It goes to the weight, and not to the admissibility, of the declaration as evidence. But it is said: "If such evidence is admissible, then unscrupulous persons can dishonestly flood the record with evidence that can be neither combated nor anticipated, for the sole purpose of mulcting a defendant in damages." The answer is that no rule of evidence has been formulated by man that can prevent perjury. Litigants must, in the last analysis, rely upon the justice and good sense of juries. The authorities cited by counsel from other jurisdictions need not be reviewed, as they are not in harmony with the view hitherto taken by this court.

One of the respondent's witnesses upon direct examination stated that, when the boy was observed riding upon the step, the conductor pulled the bell cord and started to open the door, when some one said, “The

1

Johnson v. St. Paul & W. Coal Co. was an action to recover damages for personal injuries. The plaintiff, a hatch tender, alleged that he was struck by a sheave hook used to lower coal buckets into the vessel. A witness, having testified that he saw the boy fall, was permitted to state that a moment later he heard some one say: "The hook hit him!" The court said that the exclamation was clearly a part of the res gestæ. In Dale v. Colfax Consol. Coal Co. the plaintiff, a brakeman, attempting to alight to make a coupling, fell to the track, and was run over by the car on which he had been riding. The negligence charged was that the defendant's employés failed to stop the train after they knew of the plaintiff's peril. It was held, as bearing on the question whether the conductor had actual knowledge of the plaintiff's situation, that the statements of persons on the car in the presence of the conductor, and their acts within the scope of his observation, could be shown as tending to establish his actual knowledge. In Harrill v. South Carolina, etc., Ry. Co., a personal injury suit, the deceased was killed, while moving an engine over a bridge, by the falling of the bridge. The engine had crossed that part of the bridge over the water and had reached the trestle on the ground, when bystanders exclaimed: "Jake is safe!" The trestle suddenly gave way, and the engine and tender were thrown back and fell into the water. It was held that the exclamation was competent evidence, going to show the dangerous condition of the bridge, the peril of crossing,

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