
    [No. 18476.
    Department Two.
    May 9, 1924.]
    Cicero Johnston et al., Appellants, v. Walter Chesser et al., Respondents. 
      
    
    Fraud (8, 22) — Misrepresentations—Reliance Upon — Means of Knowledge — Evidence—Sufficiency. Findings that there was no fraud in pointing out the boundaries of a timber tract and misrepresenting the quantity of timber, are sustained where it appears that the location was pointed out only in a general way, the purchasers made their own examination, relying on their own extended experience as loggers and cruisers, and the property was well worth the purchase price.
    Appeal (452) — Harmless Error — Admission of Evidence. Error in the admission of testimony in an action tried to the court is harmless on trial de novo on appeal.
    Appeal from a judgment of the superior court for Thurston county, Wright, J., entered Séptember 17, 1923, in favor of the defendants, dismissing an action for rescission, tried to the court.
    Affirmed.
    
      James O. Marts and R. H. Fry, for appellants.
    
      Vance & Christensen, for respondent.
    
      
      Reported in 225 Pac. 442.
    
   Fullerton, J.

In May, 1923, the respondent Chesser was the owner of two abutting forty-acre tracts of land situated in Thurston county. The land was chiefly valuable as timber land, and Chesser was then logging it. On May 23d of the year named, he contracted to sell the land to the appellants Johnston, together with his logging outfit, the logs cut and then on the land, and logs which he had cut from the land and removed to booming grounds on an arm of Puget Sound. On the following day the contract was executed by instruments of conveyance expressing the terms and conditions of the sale. Some days later, the appellants, conceiving that they had been defrauded in the transaction, brought the present action to set it aside and recover the consideration paid for the property. Issue was joined on the appellants’ complaint and a trial of the cause had upon its merits, resulting in a decree denying to the appellants any form of relief.

The claim of fraud is based on the contention that Chesser and his representative, the respondent Raab, made false representations as to the position of the boundary lines of the tract, particularly the line marking the east boundary, and also as to the quantity of timber on the tract. It was testified by the appellant making the examination of the land prior to its purchase that the boundary lines as pointed out to him included certain heavy timber standing on a tract lying to the east of the tract sold, and which subsequently proved not to bé so included. It may be that the purchasers were misled in this respect, but an examination of the evidence in its entirety convinces us that the misleading was the result of their own hasty action, and was not due to any misrepresentations on the part of the respondents. As to Chesser, he was not asked to point out the boundaries to the appellant and made no representations to them concerning the boundaries whatsoever. Such representations as were made concerning the location of the line were made by the respondent Raab, and our reading of the testimony of the appellant who examined the land, disregarding the testimony of Raab, convinces us that Raab did not pretend to know more than in a general way of the location of the lines. They both agree that, prior to going onto the land, they went to a point some distance from it, and from which the east boundary line could be observed and located in a general way, but that when they went onto the land the line "was not found. Chesser, while at the premises when the appellants came to examine it, was ill and did not go with them, bnt both he and Eaab testify that, when the parties returned from the examination and described to him certain objects that were visible from places they had visited, he told them that they had gone outside of his boundary lines, as these objects were not visible from any place upon it. It is but fair to say, however, that the appellant mentioned denies this statement, but we think enough does appear to show that he relied more upon his own judgment as to the boundary lines and ■as to the quantity of timber than he did upon any representations that v/ere made to him.

After this examination, other of the appellants examined it. They were not novices at the business of logging. On the contrary, they were men of large experience. They had logged many timber tracts, and were used to tracing boundary lines, and, while they did not pretend to be cruisers, testified that they could estimate, with a fair degree of closeness, the quantity of timber on any given tract. It appears furthermore that the attorney whom the parties employed to prepare the written conveyances, when the terms of the contract were made known to him, suggested to the appellants the advisability of a further examination, but the appellants, so confident were they of their own abilities to judge of the matter, seem to regard the suggestion as an impertinence rather than well-meant advice.

As to the representations concerning the amount of timber on the tract actually conveyed, the evidence is directly contradictory. The appellants state that Chesser represented to them that the tract contained at least one million feet of merchantable timber. Chesser testified that he told them that it was his belief that it contained that quantity of timber; but that he told them at the same time that he had never had it cruised, and that the source of his information was the man from whom he purchased it. In substantiation of his statements he produced his grantor, who testified that he did give that quantity as the amount of merchantable timber on the land, and that the source of his information was a cruise made some years before. In further substantiation of his belief he produced a cruiser who had cruised the tract at his request, and this cruiser reported that he found some nine hundred thousand feet of merchantable timber on the land.

But we need not pursue this branch of the inquiry further. "While it is clear from the evidence that the appellants did not receive the bargain they thought they were obtaining, it is equally clear, we think, that this was the result of their own ill-considered and hasty action, rather than the result of any false or fraudulent representations on the part of the respondents. Moreover, the property conveyed was not without value — indeed, the only witness who testified on the subject gave estimates of value showing that the property conveyed was well worth the purchase price — and it is thus not an instance where fraud can be presumed from the disparity between the value of the property and the amount of the purchase price.

The appellants complain of certain rulings of the court in admitting and rejecting testimony, but these require no special consideration. As to the first branch of the objection, it is enough to say that, since this court examines the record de novo, it can itself reject the incompetent evidence. The exclusion of evidence is, of course, of more moment, but in this instance the purport of the evidence rejected is in the record, and considering it along with the admitted evidence, it by no means permits or requires a reversal of the decree entered. The decree is affirmed.

Main, C. J., Bridges, and Mitchell, JJ., concur.  