Shaw v. O'Neill

Citations

• 45 Wash. 98
• 88 P. 111
• 1906 Wash. LEXIS 927

Syllabus

<p>Vendor and Purchaser — Rescission by Vendee — Grounds— Fraud — -Knowledge of Vendors. A vendee is entitled to rescission, without alleging that the vendors’ representations were known to be false or made with fraudulent intent, where 23.462 acres of oyster lands, described by metes and bounds in a complicated description, were pointed out as the property of the grantors which they agreed to sell, when in fact they did not own the portion thereof which was the moving cause of the purchase, and the deed made included other property, there being no breach of the covenants of the deed upon which action could be brought.</p> <p>Same — Mutual Mistake. Mutual mistake respecting land intended to be sold and conveyed, whereby the vendor was without power to perform the contract, is no defense to an action by the vendee for a rescission of the sale.</p> <p>Same — Action for Rescission — Pleadings—Affirmative Defense. It is not error to strike out an affirmative defense in an action for the recission of a sale of lands, setting up that since the sale the plaintiff had negligently allowed the improvements to deteriorate, where that issue is already raised by a general denial of plaintiffs allegation of readiness and ability to restore the defendants to their original rights.</p> <p>Appeal — Record—Review. Where the evidence is not brought up, it will be presumed on appeal that the court did not refuse to admit evidence on the issues made.</p>