Watson v. Duarte

NOURSE, J.

Plaintiff sued to recover the sum of $612.50 on a written contract executed by the defendant whereby the plaintiff and his assignor were employed as real estate brokers to exchange a piece of real property owned by the defendant for certain real property owned by one D. Sirkegian. By the terms of the contract the commission was agreed to he paid upon the acceptance of the terms and conditions of the exchange by the said Sirkegian. The

[53]

contract contained a waiver of the defendant’s right to attack the contract upon the ground of misrepresentation in its execution, which read as follows: “It is further understood and agreed that we have investigated and examined the property last above herein described, know the value thereof and hereby release said J. O. Kerrick and B. J. Watson from all responsibility and liability for representations or statements as to the same.” The plaintiff sued in the usual form for the recovery of the amount stipulated to be paid in the contract. As a special defense the answer alleged that defendant’s signature to the contract was secured by false and fraudulent representations on the part of plaintiff, consisting in (1) a representation that the land was worth $40,000 and would readily sell for same on the market; that the plaintiff then had a sale ready and waiting at said price of $40,000, whereas in truth and in fact the land was not worth over $25,000, and that it had been frequently priced at said sum around the time of the execution of the agreement. (2) That plaintiff represented that there were 1,500 peach trees on the premises, whereas, there were but 900; that there were fourteen acres of Muscat grapes, whereas there were only eleven acres of Muscat grapes; that there were twelve acres of Thompson grapes, whereas there were only two acres of Thompson grapes. (3) That said land was clear from alkali, whereas it was in fact situated in an alkali district and contained alkali. (4) That the yield from said crop on said ranch was $6,000 a year, whereas the yield therefrom was in fact less than $2,000 a year. (5) That said land was level, whereas in truth it is rough and uneven. Upon this issue it was further alleged that the defendant was crippled and was • therefore unable to examine the land; that he went with the plaintiff to see a small portion of the land near the house and relied solely upon the representations of the plaintiff with reference to the property; that he was unable to read or write the English language; that he had never read the contract nor had anyone else read the same to him, but that he executed it, relying upon the friendship of plaintiff for himself and his family and on the further representation of plaintiff that it would not bind him to trade his property unless he so desired.