
    [No. 11308.
    Department One.
    March 6, 1914.]
    Frank A. Connolly, Appellant, v. O. F. Fredericks et al., Respondents.
    
    Appeal — Review—Findings. Findings upon conflicting evidence will not be disturbed on appeal when sustained by the record.
    Appeal from a judgment of the superior court for King county, Smith, J., entered November 25, 1912, upon findings in favor of the defendants, dismissing an action in tort, tried to the court.
    Affirmed.
    
      Jay C. Allen, for appellant.
    
      A. J. Falknor, for respondents.
    
      
      Reported in 140 Pac. 1199.
    
   Main, J.

The purpose of this action was to recover damages alleged to be due to false representations in a transaction involving the exchange of real estate. The cause was tried to the court, sitting without a jury. Judgment was entered dismissing the action, from which the appeal follows.

On the 8th day of December, 1911, Truman H. Heath and Margaret M. Heath, his wife, were the owners of an apartment house in Seattle, Washington; and O. F. Fredericks and wife were the owners of a farm consisting of about 160 acres, located in Thurston county, in the state of Washington. At about this time, the Heaths entered into a contract with the Fredericks whereby the apartment house was to be exchanged for the farm. The details of the contract or the deeds which followed need not be further set forth herein. At the same time, Heath purchased from Fredericks certain personal property which was then upon the farm, consisting of cattle, oats, hay and chickens.

Thereafter Heath took possession of the farm, and Fredericks of the apartment house. After a time, Heath concluded that Fredericks had been guilty of misrepresentations in the transaction, claiming that the number of acres of cleared land upon the farm was approximately sixty, and that it had been represented that there were eighty acres. Also, that there had been misrepresentation as to the quantity of oats and hay, the health of the cattle, and the number of chickens. Heath assigned his alleged claim for damages to one Frank A. Connolly, the appellant herein, and the present action was begun.

The evidence is conflicting as to whether there were fraudulent representations as to any of the matters claimed. If the respondents’ evidence is to be believed, there is nothing to justify the claim of fraud. On the other hand, if the appellant’s evidence establishes the facts, then it becomes a question of law whether, under such facts, fraud had been practiced. It has been frequently stated by this court that, where a charge of fraud is made, it must be established by evidence which is clear and convincing. The trial court, upon the conflicting evidence as to the facts, found in favor of the respondents. From a reading of the record, we think this finding must be sustained. It therefore becomes unnecessary to consider whether, as a matter of law, there was fraud had the facts been as claimed by the appellant.

The judgment will be affirmed.

Crow, C. J., Ellis, Chadwick, and Gose, JJ., concur.  