O. C. Moore, of Spokane, for appellant. SMITH SAND & GRAVEL CO. v. CORBIN. len, Winston & Allen, of Spokane, for re(No. 12773.) spondent.

[1, 2] The first claim of error is directed to the striking by the trial court of the secDepartment 1. Appeal from Superior ond and third causes of action. The third Court, Spokane County; E. H. Sullivan, cause of action was abandoned at the former Judge.

vide when it was to be completed. There being no allegation that any definite time was agreed upon, either orally or otherwise, it became an implied term of the contract that it must be done within a reasonable time. It follows that the only competent evidence as to time was evidence of what was a reasonable time to do the work of removing the rock, which was the only work contemplated in the written contract. Such evidence was admitted, and, we held, properly so. But the appellant, as its so-called second cause of action, pleaded an alleged oral agreement which would extend the time of performance beyond the legally implied reasonable time for the removal of all the rock to such time as it might find necessary to crush the rock, and sell it at a profit. As we said on the rehearing en banc:

said in the opinion save the final sentence af-¡ be done, and at what price, but did not profirming the order granting a new trial is obiter dictum. Several pages of his brief are devoted to the elementary rule that dictum is not decision. It is then argued that the sufficiency of the complaint was not before us because insufficiency of a complaint to state a cause of action is not made by statute a specific ground for the granting of a new trial. The statute (Rem. & Bal. Code, § 399, subd. 8) however, does provide that a new trial may be granted for "error in law occurring at the trial and excepted to at the time by the party making the application." It is self-evident that the admission of evidence addressed to a pleading which does not state a cause of action, over objection and exception taken, is error in law. We were therefore compelled to pass upon the sufficiency of the second count of the complaint in order to determine whether the trial court had committed error in law by admitting evidence under it. Demonstrably the determination of the insufficiency of the second cause of action was necessary to the conclusion that the new trial was properly granted. Our decision that it did not state a cause of action, therefore, became thenceforth the law of the case and a sufficient warrant to the trial court to strike it from the complaint.

[3, 4] Appellant now urges us to reconsider the question of the sufficiency of the second cause of action, insisting that all that was said in the opinion en banc was an inadvertence, and in conflict with the holding of this court in Interstate Engineering Co. v. Archer, 64 Wash. 629, 117 Pac. 470. We find no such conflict. In that case there was no formal written contract. The writing consisted of an order for structural iron and the letter acknowledging receipt of the order, stating the price, kind of material, manner of shipment, and terms of payment, but failing to state the quantity of material or the time when it was to be delivered. The defendant pleaded and was permitted to prove that the plaintiff agreed to ship the iron within a reasonable time, and not to exceed 30 days after the date of the contract. We said:

"The letter upon its face does not purport to state the whole agreement. * * Where it appears that only a part of the contract is in writing, the part not in writing may be proved by parol, in so far as it is not inconsistent with the written portion. 17 Cyc. 746; Wigmore, Evidence, § 2430. It was proper, therefore, for the court to receive oral evidence as to the time when the materials were agreed to be delivered." The phrase which we have italicized in the above quotation states an essential qualification in every such case. It marks a plain and elementary distinction between the Interstate Engineering Case and the case before us. In the case here there was neither allegation nor offer of proof that any definite time was agreed upon as a reasonable time for the removal of the rock. The written contract definitely provided what work was to

"Such an agreement would change the whole tenor of the written contract. It would extend plied reasonable time for the removal of all the the time of performance beyond the legally imrock to such time as the appellant might find necessary to crush the rock and sell it at a profit. This would contradict and change the whole scope and meaning of the written contract touching a stipulation upon which the writing is clear and unambiguous. The written contract was not for a sale of rock, but for the removal of rock; hence no damages could be recovered for a loss of profits upon the rock without first showing that the respondent terminated the contract and re-entered before the expiration of a reasonable time for the removal of all the rock, not crushing and selling of all the rock at a profit. before the expiration of a reasonable time for These two things are so widely different that a contract for the one is wholly inconsistent with an agreement for the other."

If in the Interstate Engineering Case the plaintiff had pleaded an oral agreement that it should have such time to furnish the iron as might be required to purchase it at such price as to make a profit on the written contract to furnish the iron to the defendant, proof of such a collateral agreement would have been plainly inadmissible. It would have changed the whole tenor of the written agreement to furnish the iron at a given price for a given purpose. It would have had no tendency to prove what was a reasonable time to furnish the iron. Furnishing the iron was the definite purpose covered by the writing. The distinction is just this: The rule that the failure to fix a definite time in the writing to do the definite thing provided in the writing to be done will admit parol proof of what is a reasonable time to do that definite thing does not authorize parol proof of what would be a reasonable time to do that thing and something else not mentioned nor implied in the writing.

Counsel quotes with emphasis the following from the en banc opinion:

quired to crush and dispose of the rock by the | complains that the arguments in support of sale at a profit as the agreed time for the removal of the rock."

it "were the exclusive products of the industry of the court." The point was raised He then says that this construction of the in respondent's opening brief on the first apsecond cause of action is not borne out by an peal, and was thereafter discussed in the inspection of the complaint, because "no- appellant's reply brief, and again in appelwhere in the complaint is it alleged that the lant's brief on rehearing en banc. Moreover, time for performance was to be extended for the trial court discussed the point in his the purpose of enabling appellant to find oral ruling on the motion for a new trial. It purchasers or for any other purpose." He is simply idle to intimate that the question then immediately states that, under the al- was not presented in the record. The statelegations of the second cause of action, he ment that the arguments in support of our was at the first trial permitted to introduce opinion en banc were the product of the evidence "respecting the difficulty of finding court's industry is largely true, but furnishes a market for the crushed rock and of delays no just ground for criticism. The responsiin the work consequent thereon." Further bilities of this court as a court of review are along in the same connection he argues: not limited to what the briefs may offer. Many appeals are presented in which the respondent fails to appear and file any brief, but we never treat the appellant's case as confessed on that account. In such a case we always make an independent investigation to the extent that our limited time will permit, and endeavor to reach a correct result. For an example see Mesher v. Osborne, 75 Wash. 439, 134 Pac. 1092, 48 L. R. A. (N. S.) 917.

"Now, since the oral portion provided that the rock, when removed, should become the property of the appellant as an additional consideration, then it was proper to inquire and introduce evidence to prove under what circumstances and conditions the rock so contracted to be removed could be rendered available and valuable as an

additional consideration, and the question of what constituted a 'reasonable time' for performance was to be determined in the light of those conditions as they might be disclosed by the evidence. This line of inquiry was permitted to some extent by the court at the former trial, and it was thereby disclosed, as commented upon [6] Finally, the appellant, though insisting by this court, that the value of the rock when that the second trial should have been had crushed, likewise the demand therefor, was de- on the pleadings as they stood when the new pendent upon a variable market, which was con- trial was granted, somewhat inconsistently trolled in turn to a large extent by the business conditions of the city of Spokane and the now claims that the trial court erred in reamount of public work in progress wherein fusing to permit an amendment of the seccrushed rock might be used as a building mate- ond cause of action. The trial court comrial. These things, we repeat, were undoubtedly in the minds of the contracting parties at the mitted no error in this respect. The purpose time of the execution of the contract, and neces- of the proposed amendment was to claim a sarily constituted the surrounding circumstances breach of the contract on respondent's part in and conditions which must be considered in or- failing to pay 90 per cent. of the monthly esder to arrive at a just conclusion as to the time timates of rocks removed as provided in the within which performance was to be completed." written contract. This was not claimed as a If in this counsel does not construe his own breach in the original amended complaint. pleading precisely as we construed it in the To have permitted the amendment would quotation from our en banc opinion, which have introduced an entirely new cause of ache criticizes, then his language has no mean- tion. Moreover, to now assert this as a reaing at all. Nothing which we could say son for the appellant's delay in removing the could make it plainer than this language of rock would be a plain departure from the counsel does that the purpose of the second position taken by appellant in its reply, cause of action was to plead, in order to wherein it is alleged, in substance, that its prove as an additional consideration to that delay in removing the rock was contemplated named in the writing, a contemporaneous by a collateral oral agreement that appellant parol agreement contradicting the terms, en- should have such time to remove it as might larging the scope, and varying the purpose of be necessary to dispose of it to third persons the contract as written, and thus, under the for commercial purposes. To permit such a guise of proving an additional consideration, departure by amendment would be to encouringraft on the written agreement new terms age successive trials on wholly different theand covenants by parol so as to enlarge theories and to entertain appeals in piecemeal. time of performance. Counsel cannot in one Such a course would lead to a never-ending breath disclaim that purpose for his second litigation of the same transaction. Perrault cause of action as pleaded, and in the next v. Emporium Department Store Co., 83 Wash. breath claim that purpose for the only evi-578, 145 Pac. 438, and cases there cited. dence offered under that pleading.

[5] Counsel intimates that the question of the sufficiency of the complaint was not raised in the briefs on the former appeal, and

Affirmed.

MORRIS, C. J., and FULLERTON, CHADWICK, and ELLIS, JJ., concur.

(89 Wash. 98)

MUMFORD v. SMITH et al. (Supreme Court of Washington. 1. EXCHANGE OF PROPERTY RESCISSION-EVIDENCE.

8

(No. 12665.) Jan. 6, 1916.) LAND

in an addition to the town of Des Moines, in King county. Together they visited the hotel mentioned in the advertisement, and the appellant expressed her satisfaction therewith, but no serious, if any, negotiations were had with the owner looking to an exchange of property. Smith had in the meantime acquired the legal title to an apartment house and the lots on which the same was situate [Ed. Note.-For other cases, see Exchange of in the city of Everett, and he immediately Property, Cent. Dig. §§ 14-18; Dec. Dig. 8.] directed the appellant's attention to this 2. EXCHANGE OF PROPERTY 5-EXCHANGE property, offering it in exchange for her propOF LAND-FALSE REPRESENTATIONS.

In an action to rescind a contract for the exchange of real estate, evidence held sufficient to show that plaintiff was induced to make the exchange through defendant's false representations. 1

Where defendant, with intent to deceive erty. After some negotiation an exchange and defraud plaintiff, induced her to exchange was effected, the appellant taking the aparther farm and vacant lots for his apartment ment property, and the respondent taking the house by making false representations regarding 40-acre tract and some 71 of the lots in the the present and prospective value of the house, The deeds were ex

the rents obtainable, nearby prospective im- Des Moines addition.

provements, the desirability of the neighborhood, changed on June 13, 1913. Later on the apand his ability to close a pending sale to her pellant conceived that she had been overlarge profit, and the house was grossly inade- reached in the transaction, and brought the quate as a consideration for plaintiff's property, plaintiff was entitled to the rescission of the contract, since the transaction was a fraud upon her.

[Ed. Note.-For other cases, see Exchange of Property, Cent. Dig. 88 5, 6, 8-10; Dec. Dig. 5.]

3. EXCHANGE OF PROPERTY 3-FALSE REP.

BESENTATIONS-MATERIAL FACTS.

Such misrepresentations being not merely opinions excusable as seller's praise, but misrepresentations of material facts whose falsity was not readily ascertainable, plaintiff might rely upon them in making the exchange.

[Ed. Note.-For other cases, see Exchange of Property, Cent. Dig. §§ 3, 7; Dec. Dig. 3.1 4. EXCHANGE OF PROPERTY 8 FRAUD DECREE.

Where defendant, directly after the exchange, sold part and mortgaged part of the property so obtained from plaintiff to innocent third persons, precluding a complete resto ration in an action to rescind such contract of exchange, plaintiff is entitled in her decree to a money judgment over for the amount of her loss through such sale and mortgage.

[Ed. Note.-For other cases, see Exchange of Property, Cent. Dig. §§ 14-18; Dec. Dig. 8.] Department 2. Appeal from Superior Court, Snohomish County; Guy C. Alston, Judge.

Action by Harriet Mumford against Carmichael J. Smith and others to rescind a contract for the exchange of land. Judgment for defendants, and plaintiff appeals. Reversed.

Aust & Terhune, of Seattle, and J. Y. Kennedy, of Everett, for appellant. E. C. Dailey, of Everett, for respondents.

present action to rescind the contract. In her complaint she set forth at length the negotiations between herself and the respondent Smith leading up to the exchange, and charged him with falsely misrepresenting the income derived from the property, and with making false representations concerning its condition, its desirability as an apartment house, and its proximity to certain improvements about to be instituted by a public corporation which would greatly enhance its value. Issue was taken on the complaint, and a trial had, which resulted in a judgment for the respondent.

The trial judge made no findings of fact, nor does the record otherwise disclose the grounds upon which he rested his decision. The evidence makes it clear, however, that he could not have found that the appellant was not defrauded. On this question there is no room for even a reasonable doubt. gave up property in the exchange which the respondent admits had a substantial value, and which conservative witnesses estimated to be worth from $4,000 to $5,000 over and

She

above its incumbrances. She received noth

ing in the exchange other than the apartment house property and certain furniture contained therein. No disinterested witness valued the apartment property in excess of $3,500, or the furniture in excess of $300, and some of them placed the values at even a less sum. The apartment property was taken subject to two mortgages, the one for $1,300, on which the interest was in arrears for more than a year, and the other for $1,500, on which the interest was in arrears for more than a year and a half; in fact, on the latter mortgage no interest had been paid since

FULLERTON, J. [1] In the early part of the year 1913 the respondent Carmichael J. Smith, a real estate broker doing business in the city of Everett, inserted an advertisement its execution. Giving the property its highin a local paper offering to exchange a hotel in that city for farm lands. The appellant, Mumford, noticing the advertisement, called upon Smith with a view of making such an There is but little question also that she exchange. Mrs. Mumford at that time owned was actually deceived and overreached by a 40-acre tract of land situated near Marys- the respondent. While many of the represenville, in Snohomish county, and some 100 lots tations she charges him with are denied by

est valuation, she did not receive for the very considerable property she deeded to the respondent values in excess of $400 or $500.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes