66 Wn.2d 919, THEODORE R. KRAUSE et al., Respondents, v. E. FRANK MARIOTTO et al., Appellants

[No. 37648. Department Two.      Supreme Court      September 23, 1965.]

THEODORE R. KRAUSE et al., Respondents, v. E. FRANK
                MARIOTTO et al., Appellants.*

[1] Appeal and Error - Review - Findings. Where findings of fact are supported by substantial evidence, they will be sustained on appeal.

[2] Contracts - Rescission - Grounds. The failure of a significant and material portion of the consideration for a contract of sale constitutes grounds for rescission of the contract, and will support a judgment restoring the parties to status quo.

Appeal from a judgment of the Superior Court for Whatcom County, No. 39172, Bert C. Kale, J., entered December 27, 1963. Affirmed.

Action to rescind a contract. Defendants appeal from a judgment in favor of the plaintiffs.

Livesey, Kingsbury & Livesey, by George Livesey, Jr., for appellants.

Abbott, Lant & Fleeson, by Richard Fleeson, for respondents.

PER CURIAM. -

Defendants appeal from a judgment rescinding a written contract of conditional sale and returning to plaintiffs, the purchasers, their down payment.

February 14, 1963, defendants sold the Bell-Ice Company to plaintiffs on conditional sale contract for $34,500. An $8,000 down payment was made. The sale included equipment, machinery, good will of the business and the S & S ice vending machine franchise for the territory.

Plaintiffs operated the business from March 1, 1963 until April 24, 1963 at which time the business was returned to defendants. In the meantime, two events occurred: plaintiffs sold for $4,850 one of the ice machines purchased, and retained the funds; and, it was discovered that defendants no longer had a franchise for the sale of the S & S ice

* Reported in 406 P.2d 16.

[2] See Am. Jur. 2d, Contracts 502.

 920    KRAUSE v. MARIOTTO           [66 Wn. (2d)

vending machines. Plaintiffs gave written notice of rescission; defendants gave notice of intention to forfeit the contract.

All of defendants' assignments of error orbit around finding of fact No. 4:
That a significant, material and valuable portion of the consideration to be transferred by Defendants to Plaintiffs in exchange for the purchase price was a S & S

Vending Machine franchise for Whatcom, Skagit, Snohomish, Island and San Juan Counties in the State of

Washington, which franchise was not in effect and was not available to Defendants to transfer to Plaintiffs at the time said agreement was entered into.

[1, 2] This finding is amply sustained by the evidence. We will not substitute our opinion for that of the trial court. West Coast Airlines, Inc. v. Miner's Aircraft & Engine Serv., Inc., ante p. 513, 403 P.2d 833 (1965). The purported franchise was a significant, material and valuable portion of the consideration to be transferred by defendants, and since there was no franchise in existence, it was not error to restore the parties to status quo. Ross v. Harding, 64 Wn.2d 231, 391 P.2d 526 (1964). Failure of consideration is ground for rescission of a contract. Barber v. Rochester, 52 Wn.2d 691, 328 P.2d 711 (1958).

The judgment is affirmed.