
    [No. 11216.
    Department Two.
    January 23, 1914.]
    W. D. Chapman, Appellant, v. Henry T. Hill, Respondent.
      
    
    Specific Performance — Defenses—False Representations — Materiality — Reliance Upon. Specific performance of a contract for the exchange of property will not be decreed where the contract was induced by plaintiff’s false representations that there was nothing but interest due on two mortgages, which did not fall due for two years, when the mortgages were given to secure installment notes for $1,000 falling due the same year and following years; the same being false representations of material facts peculiarly within the plaintiff’s knowledge, and not readily ascertainable by the defendant; especially where plaintiff knew defendant would make no personal investigation.
    Same — Right to Relief — Parties—Community Property. Specific performance of a contract to convey the community property of the defendant will not be decreed where defendant’s wife was not a party to either the contract or the action.
    Appeal from a judgment of the superior court for Walla Walla county, Brents, J., entered November 8, 1912, dismissing an action for specific performance, after a trial on the merits to the court.
    Affirmed.
    
      John C. Hurspool, for appellant.
    
      Dunphy, Evarn & Garrecht, for respondent.
    
      
      Reported in 137 Pac. 1041.
    
   Morris, J.

Action for the specific performance of a contract for the exchange of real estate. The contract was made in this state, on May 81, 1912, and covered lands of appellant situate in Oregon, and lands of respondent situate in Oregon and Washington. The action was resisted on two grounds: (1) misrepresentations as to the maturity of two mortgages upon appellant’s lands, one for $3,600, the other for $1,000; and (2) that the land in this state was the community property of resppndent and his wife, who was a party to neither the contract nor the action. The court below, without making findings, dismissed the action.

The judgment of dismissal must be sustained upon both grounds. We find that appellant represented to the respondent, to induce him to enter into the contract, that only $500 interest was then due upon the two mortgages, and that the mortgages themselves would not be due for two years; while, as a matter of fact, the mortgages were given to secure installment notes, one of which for $1,000 was due in October, 1911, and still unpaid; another for $1,000 would become due in October, 1912; a third in October, 1913, and the remaining $600 of the $3,600 mortgage would become due in October, 1914. Both of these mortgages were held by nonresidents of this state. Here we have a false representation of an existing and material fact, the truth or means of knowledge of which was peculiarly within the knowledge of one party, and the opportunity of ascertaining the true facts, not readily ascertainable, to the other, together with the knowledge by one party that the other did not intend to make a personal investigation but relied absolutely on the truth of the facts communicated to him. These facts vitiated the contract and rendered it unenforceable. Bell v. Jovita Heights Co., 71 Wash. 7, 127 Pac. 289; Conta v. Corgiat, 74 Wash. 28, 132 Pac. 746; Stewart v. Larkin, 74 Wash. 681, 134 Pac. 186; Borde v. Kingsley, 76 Wash. 613, 136 Pac. 1172.

Having reached this conclusion, it is unnecessary to discuss the second point relied upon to sustain the judgment, other than to say it is well taken. Armstrong v. Oakley, 23 Wash. 122, 62 Pac. 499.

The judgment is affirmed.

Crow, C. J., Parker, Fullerton, and Mount, JJ., concur.  