Dohrman v. J. B. Roof, Inc.

Plaintiff and respondent brought this action against defendant and appellant and one John G. McIntyre, sued under the name of John Doc McIntyre, for the rescission of a contract for the purchase by her from said J. B. Roof, Incorporated, of certain real property situated in the city of Los Angeles, state of California, and for the recovery of the sum of $3,850, paid by her on the purchase price of said property, together with interest on said amount from date of payment. The basis of her suit is alleged fraud and false representations made to her by said McIntyre while acting as agent of defendant, J. B. Roof, Incorporated, in the sale of the property.

Defendant, J. B. Roof, Incorporated, answered plaintiff’s complaint, admitting some of the facts therein stated, but denying most of the allegations thereof, and also interposing the defense of laches on the part of plaintiff in rescinding the contract of purchase. The defendant McIntyre was not served with process and did not appear in the action. The cause went to trial as to the plaintiff and the defendant, J. B. Roof, Incorporated, and judgment was rendered in favor of plaintiff rescinding said contract of purchase and for the recovery of said $3,850 which she had paid on the purchase price of the property, with interest. Defendant and appellant moved for a new trial, which motion was denied and this appeal was taken from the judgment.

Appellant relies upon two grounds for a reversal of the judgment: First, insufficiency of the evidence to support the findings and the judgment; and second, errors of the trial court in the admission and rejection of evidence.

The trial court found in favor of respondent upon all of the material allegations of her complaint, except that no finding was made upon the charge of fraud and false representations relative to improvements to be placed upon property adjacent to the property purchased. The court found that respondent was not guilty of laches in rescinding the contract of purchase, and also made a further finding that there had not been a meeting of the minds of the parties to the contract by reason of the fact that the description of the land inserted in the contract was not the true description of the property, as represented to plaintiff by defendant’s agents.

Counsel for appellant, in their closing brief, recognize the rule that where there is a conflict of evidence upon any issue, this court will not disturb the trial court’s finding upon such issue. Keeping in mind this rule of law, we

The evidence shows, without conflict, that appellant owned a piece of land in the city of Los Angeles, known as the “Bandini Tract”, and that the land had been platted and subdivided for the purposes of sale. A map of the tract had been prepared and recorded in the office of the county recorder of Los Angeles County, and was designated as “Tract No. 8047”. This map set forth the names and location of the various streets, alleys and avenues laid out in said tract, as well as the different lots therein, each lot being designated by a certain number, and each lot having the dimensions of same, in feet, and the courses of its boundaries marked thereon. The particular parcel of land involved in this suit is' a portion of lot number 500 as designated on said recorded map. This lot number 500 is irregular in shape, and as shown on said map, is bounded^ on its northeasterly side by a street named Leonis Street, on its southeasterly side by an avenue named Gabriel Avenue; on its southwesterly side by a street named Nobel Street; and on its northwesterly side by lots numbered 501 and 524 of said tract. On this recorded map lot 500 is shown in one parcel. Appellant and its alleged agent, McIntyre, had two unrecorded maps of such tract, on both of which said lot 500 is shown to be divided into two parcels by a line running through said lot from Leonis Street to Nobel Street. On said two unrecorded maps the parcel Of said lot abutting on lots 501 and 524 is designated as 500A, and the parcel bordering on Gabriel Avenue is designated as 500B. One of these unrecorded maps hung on the wall of a tent situated on said Bandini Tract, in which tent lunches were served and lectures delivered to prospective purchasers. It was stipulated at the trial that the parcel designated on said unrecorded maps as 500B bordered on Leonis Street 90 feet; on Gabriel Avenue 79.33 feet, and on Nobel Street 69.55 feet. The evidence shows that in the month of October, 1924, respondent, at the request of and in company with one Mrs. Buth Down, visited said Bandini Tract with a view of making a purchase. Said John G. McIntyre was on the tract at the time, and after the two

In addition to testifying as above set forth, respondent testified that in purchasing the property she relied upon what McIntyre told her with reference to same and believed that what he told her was the truth, and further, that she would not have purchased the lot had she known that it was not as large as he represented it to be. The court specifically found that respondent was induced to sign the purchase agreement by reason of the representations of appellant’s agent hereinbefore mentioned, as to the size and area of the lot she was purchasing; that such representations were false and fraudulent and were made by appellant’s agents with a knowledge of their falsity, and that respondent relied upon such representations so made, and was deceived thereby. We think that the finding thus made is amply supported by the foregoing evidence. It is quite apparent from an examination of the whole record before us that when respondent entered into the contract involved in this action, she honestly thought and believed that she was purchasing a lot extending 100 feet on Leonis Street, 78 feet on Gabriel Avenue, 99 feet on Nobel Street, and 123 feet on a line running from Nobel Street to Leonis Street, and that she was led into this belief solely by the false representations made to her at the time of purchase by appellant’s duly authorized agent, J. G. McIntyre; whereas, in truth and in fact, she was actually acquiring, under her contract, a lot of much smaller area. The record of the evidence further convinces us that such false representations as to the dimensions of the lot involved were made with intent that they should be believed and acted upon by respondent, and that she did believe and did act upon same to her damage.

It is well settled that a misrepresentation of the areas of real property is a misrepresentation of a material fact, and, if relied upon, may be the basis for a rescission of a contract of sale. (12 Cal. Jur., p. 740, sec. 23; Mosher v. Lack, 41 Cal. App. 23 [ 181 Pac. 813 ]; DeBairos v. Barlin, 46 Cal. App. 665 [ 180 Pac. 188 , 190]; Patterson

_ Counsel for appellant contend that the evidence in the case shows that respondent, in making her purchase, did not rely upon the representations of appellant or its agents, but relied upon her own judgment and observation of the premises, and upon the judgment of her husband and of Mrs. Down. The claim is also made that Mrs. Down was associated with respondent in the transaction, and was interested financially therein. As to these contentions it is sufficient to say that the trial court, upon ample evidence, found to the contrary. The contention is also made that the reason for the attempted rescission of the contract was the inability of the respondent, after purchasing the property, to sell same at a profit. Motive of a vendee for rescinding a contract of purchase, however, is not a proper subject of inquiry when a legal reason exists for the rescission and the vendee has relied thereon. (DeBairos v. Barlin, supra.)

Appellant further contends that respondent had access to the proper means of obtaining information with respect to the property which she was about to buy; that opportunity was afforded her to investigate the property, and to verify the representations made to her, and that therefore, if she neglected to make such investigation, and made a bad bargain, she cannot complain. Such is not the law. The owner of real estate is presumed to know the area and boundaries of his own land, and a prospective purchaser has a right to rely upon the representations of the seller with reference thereto. It is true that if a purchaser undertakes to make an investigation for himself, after a representation of a fact has been made to him, and has recourse to the proper means of obtaining information, and actually learns the real facts, he cannot claim to have relied upon the misrepresentation and to have been misled by it. In the instant case, there was no sufficient evidence of any attempt on the part of the purchaser to make an independent inquiry or investigation of her own as to the area or dimensions of the lot she was buying. She relied, as she had a right to do, upon the representations of appellant’s agent as to these particulars.

Objection was made to counsel for respondent eliciting from her what conversation took place between her and J. G. McIntyre on the ground at the time of the negotiations for the purchase of the lot. This evidence is clearly admissible, as the entire record shows beyond question that McIntyre was the authorized agent of appellant in the sale of the property. Throughout the trial counsel for appellant attempted to prove an agreement existing between respondent and Mrs. Ruth Down, showing that they were jointly interested in the purchase of the lot in question. This line of evidence the court properly held to be immaterial. The transaction, according to the issues raised by the pleadings, was between appellant and respondent. Mrs. Down was not made a party to the action and had no connection with the case, unless it be that she acted as appellant’s agent in interesting respondent in the property in the first instance and in securing respondent’s signature to the contract of purchase for appellant. We do find that appellant, through its agent, McIntyre, paid a commission of $770 to Mrs. Down for some purpose in connection with the deal between it and respondent. Appellant complains that he was not permitted to prove the value per front foot of the lot purchased. The value of the property per front foot in dollars and cents was immaterial. If the purchaser desired and thought she was getting a lot having a front footage of 100 feet, she was entitled to same and was not compelled

As was said in the case of DeBairos v. Barlin, supra:

“The use to which such a lot may be put in the future is uncertain. The defendant may have had an idea at the time of purchasing, of using the place as a home, but he was not bound by that intention. It was his privilege to use the lot in any manner that might be most profitable at any later date, or to sell the same for use by others. There might be many uses to which an eighty foot lot could be put which would not be equally well met by a seventy-seven and one-half foot lot. The sale value of such a lot might be materially different if it contained eighty front feet, than it would be if it contained only seventy-seven and one-half feet, and the difference in value, we think, would not be a matter of exact measurement.”

Respondent was permitted, over appellant’s objection, to call J. G. McIntyre to the witness-stand and cross-examine him, as an adverse party under the provisions of section 2055 of the Code of Civil Procedure. Said McIntyre was named as one of the defendants of record in the case, although, as heretofore stated, he had not been served with process, nor had he made an appearance in the action. No authorities have been cited on the point by counsel on either side, and probably there are none to be found. It would seem that a reasonable construction of this section of the code would permit the calling of this party, as an adverse party, under the circumstances. However, we are satisfied from an examination of the record that appellant suffered no prejudice in the premises, as the testimony, given by this witness was very favorable to its side of the case. Later on in the trial appellant sought to call this same party as an adverse witness under this same section of the code, but was not permitted to do so, and error is claimed for this refusal. Certainly the court was right in this ruling. There was no pretense that McIntyre was a party-plaintiff in the action. Complaint is made of the court’s rulings excluding evidence of conversations had between J.

Finally, the claim is made that error was committed by the court in not permitting appellant’s counsel to read into the record a certain document consisting of three typewritten pages of matter, which document said counsel termed an “offer of proof”. We are not advised as to the contents of this document, as it nowhere appears in the record, but certainly no error was committed in refusing the offer, as the court plainly told counsel to call his witnesses and examine them, and that rulings would be made on the offered evidence as questions were asked. This, apparently, counsel did not see fit to do, but chose, rather, to rely upon this so-called “offer of proof”.

In considering this appeal we have not entirely overlooked the finding of the trial court showing that the minds of the contracting parties did not meet in the making of the contract of purchase, nor the finding which seems to be to the effect that a mutual mistake of the contracting parties was made in the making of the contract. Nor have we overlooked the contention of counsel for respondent that these two last-mentioned findings are sufficient to support

We do not deem it necessary nor advisable to prolong this opinion by any further discussion of the errors, claimed to have been committed in the trial of this action. We are fully satisfied that no prejudicial errors occurred, and that substantial justice was meted out to the parties litigant.

The judgment is affirmed.