
    [No. 11048.
    Department One.
    March 28, 1914.]
    Ida Bahrs, Respondent, v. W. S. Runkle et al., Appellants.
      
    
    Exchange of Property — Fraud—Evidence—Sufficiency. A rescission of a trade of farm property for an apartment house and furniture cannot be had for misrepresentations as to the ownership of two pianos, where the ownership was disclosed during the pendency of the negotiations, and they were not included in the papers executed, to which no serious objection was made at the time.
    Same. Fraud, warranting the rescission of a trade of farm property for an apartment house, is not established by clear and convincing evidence as to misrepresentations as to the income from the apartment house, or as to the number of rooms that were vacant, where the defendant’s testimony sustains the verity of lists furnished' showing the income, and the evidence as to whether there were five or seven vacancies was in dispute, and some confusion arose by reason of changes pending the negotiations.
    Appeal from a judgment of the superior court for King county, Albertson, J., entered October 29, 1912, upon findings in favor of the plaintiff, in an action for specific performance.
    Affirmed.
    
      Ramey & Smith, for appellants.
    
      Walter B. Beals and G. E. Steiner, for respondent.
    
      
      Reported in 139 Pac. 637.
    
   Main, J.

The plaintiff brought this action for the purpose of enforcing specific performance of a contract wherein the defendants agreed to exchange certain real property in the town of Prosser, Washington, for a leasehold interest and certain furniture owned by the plaintiff in Seattle. The defendants claimed that the contract had been induced by fraud, and sought rescission. The cause was tried to the court without a jury. Judgment was entered decreeing specific performance. The defendants have appealed.

On the 27th day of May, 1911, the defendants contracted to exchange the Prosser property for a leasehold interest and the furniture of an apartment house in Seattle. On this day, the defendants executed a deed, and the plaintiff, a bill of sale, both of which were placed in escrow until the arrival and approval of the abstract of title to the real estate. The negotiations leading up to this exchange began about a week previous. The defendants throughout the negotiations had the advice and assistance of an agent who represented them. The plaintiff acted for herself and through an agent.

The appellants claim that there was misrepresentation by the respondent, first, as to the ownership of certain furniture in the apartment house; second, as to the amount of rent being received; and third, as to the number of apartments which were vacant.

The chief articles of furniture which were in dispute were two pianos. The evidence on behalf of the respondent shows that, during the pendency of the negotiations, the appellants were informed that the articles now in dispute were not owned by the respondent. The appellants claimed that they understood these articles were to be included in the transfer. It is not denied that, after the papers were executed and prior to the time possession was taken, the appellants became aware that the disputed articles were not included, and they made no serious objection thereto.

On the matter of the amount of income the apartment house would produce, two lists were furnished, one, as claimed by the respondent, showing the winter rates, and the other the summer rates. The latter were somewhat less than the former. At the time the transaction occurred, the time for putting into effect the summer rates was near at hand; in fact, some reductions had already been made for the month of May. The appellants claim that the summer rates were less than as indicated upon the statement given them. The respondent’s evidence sustains the verity of each list.

There is also a controversy over the number of apartments which were vacant. When the negotiations began, the evidence of both parties seems to be in accord that there were five vacancies. The total number of apartments were twenty-one. The appellants testified that, at the time they took possession, seven were vacant. This is disputed by the respondent’s evidence. There seems to have been some confusion over this question, arising from the fact that one or two tenants occupying certain apartments when the appellants were first shown the property, during the pendency of the negotiations had moved into apartments which were vacant. Some claim is also made that during the pendency of the negotiations the appellants had been told that one of the vacant apartments would be occupied by a tenant the following Monday, and that he would bring with him a friend who would take still another one. At the time possession was taken, the apartments to which this testimony had reference were not occupied.

The evidence offered by the respective parties was not in harmony. It is a well known rule that the party charging fraud must prove it by evidence which is clear and convincing. From a careful consideration of all the evidence, we think the charge of fraud has not been sustained.

One or two additional questions of minor importance are presented. But we find no error in the conclusion reached by the trial judge.

The judgment will be affirmed.

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