Starwich v. Ernst

Citations

• 100 Wash. 198
• 170 P. 584
• 1918 Wash. LEXIS 731

Syllabus

<p>Pleading—Election Between Causes. Under a complaint alleging two causes of action, one for breach of warranty of a deed, and the other for false representation as to the location of a building upon the lot conveyed, it is not error, after issue joined, to refuse to require an election; since but one recovery was sought for separate acts culminating in one result, notwithstanding an attempt to divide it into tw.o causes of action.</p> <p>Fraud—Misrepresentations—Intent and Knowledge. It is actionable misrepresentation to state that a building was upon a lot conveyed, although not wilfully false or made with intent to deceive, where the building extending into the street was the major part of the consideration and had to be removed, and but for the belief that it was on the lot, the purchase would not have been made.</p> <p>Municipal Corporations-—Streets—Encroachment — Evidence— Sueeiciency. Findings that a building encroached upon a street are sustained where it appears by the preponderance of the evidence that several complete surveys from monuments found on the ground so indicated.</p> <p>Same—Streets—Encroachments — Estoppel of City — Forbearance. The act of a city in allowing sidewalks to be constructed in front of a building pursuant to ordinance calling for a sidewalk flush with the street line does not estop the city from afterwards asserting that the building protruded into the street; as mere forbearance does not work an estoppel.</p> <p>New Trial—Newly Discovered Evidence—Records. The discovery of a public record material to a defense or cause of action is not within the rule of newly discovered evidence which warrants the granting of a new trial.</p> <p>Highways—Width—Preexisting Street. Laying out a county road sixty feet wide, along the center of a platted street eighty feet wide in public use as such at the time, does not affect the width of the existing way.</p>