Under the substantive law of Washington, which we must apply in this case ( see Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188), there are nine elements of the tort of misrepresentation. Salter v. Heiser, 1950, 36 Wn.2d 536, 219 P.2d 574, 581. It is error for the trial court to fail to make a finding on each of the nine elements. Howell v. Kraft, 1974, 10 Wn. App. 266, 517 P.2d 203, 206. Magna correctly points out that, while the trial court explicitly found six of the nine elements, it failed to find expressly that (1) the Soderlings were ignorant of the falsity of the representations, (2) the Soderlings relied on the truth of the representations, and (3) the Soderlings had a right to rely on the representations. The failure to make these findings, Magna argues, requires reversal.
To sustain a finding of common law fraud, the trial court must make findings of fact as to each of the nine elements of fraud. Howell v. Kraft, 10 Wn.App. 266, 271 (1973). These elements are: (1) a representation of an existing fact, (2) its materiality, (3) its falsity, (4) the speaker's knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the person to whom it is made, (6) ignorance of its falsity on the part of the person to whom it is made, (7) the latter's reliance on the truth of the representation, (8) his right to rely upon it, and (9) his consequent damage.
To sustain a finding of common law fraud, the trial court in most cases must make findings of fact as to each of the nine elements of fraud.Howell v. Kraft, 10 Wn. App. 266, 517 P.2d 203 (1973). Those elements generally are: (1) a representation of an existing fact, (2) its materiality, (3) its falsity, (4) the speaker's knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the person to whom it is made, (6) ignorance of its falsity on the part of the person to whom it is made, (7) the latter's reliance on the truth of the representation, (8) his right to rely upon it, and (9) his consequent damage.
Hoffer v. State, 110 Wn.2d 415, 425, 755 P.2d 781 (1988), aff'd on rehearing, 113 Wn.2d 148, 776 P.2d 963 (1989). Each element of fraud is a material issue to be resolved and must be proven by clear, cogent and convincing evidence, Howell v. Kraft, 10 Wn. App. 266, 271, 517 P.2d 203 (1973), which is the equivalent of saying that the ultimate fact in issue must be shown to be "highly probable". In re Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973).
It also is true that if, on remand, the court does find fraud, findings and conclusions with respect to each of the nine elements are required. Howell v. Kraft, 10 Wn. App. 266, 271, 517 P.2d 203 (1973). However, "misrepresentation or other misconduct" would also justify vacation of the judgment under CR 60(b)(4).
The assignees of an executory contract are not liable for the obligations on the contract in absence of an express assumption of them. Howell v. Kraft, 10 Wn. App. 266, 517 P.2d 203 (1973); Higgenbotham v. Topel, 9 Wn. App. 254, 511 P.2d 1365 (1973). As assignees of Chesterfield, plaintiff-investors assumed no obligation to the conditional sale purchasers other than to hold title in trust and give a deed upon payment of the contract price.
Additionally, he contends that the "difficulty" of the question is illustrated by reference to the then wording of the "exemption clause" of the Consumer Protection Act, RCW 19.86.170, as previously interpreted by several superficially adverse appellate decisions. See, e.g., State v. Reader's Digest Ass'n, 81 Wn.2d 259, 501 P.2d 290 (1972); State v. Sterling Theatres Co., 64 Wn.2d 761, 394 P.2d 226 (1964); Dick v. Attorney General, 9 Wn. App. 586, 513 P.2d 568 (1973), aff'd but restricted, 83 Wn.2d 684, 521 P.2d 702 (1974); Howell v. Kraft, 10 Wn. App. 266, 517 P.2d 203 (1973) (petition for review granted but subsequently remanded for further findings by order dated April 3, 1975). Defendant contends, and the trial court seems to have been under the impression, that much of plaintiff's counsel's efforts were unnecessary because defendant voluntarily permitted the entry of the temporary and permanent restraining orders.