Masero v. Bessolo

Judgment of nonsuit was entered in favor of the defendant in the above-entitled action begun and prosecuted by the plaintiffs for rescission of a certain deed of conveyance made and executed by the plaintiffs and delivered to the defendant, granting and conveying certain lands and premises set forth in the complaint. Prom this judgment the plaintiffs appeal.

The amended complaint, among other things, alleges that the plaintiffs were the owners of the land described in the complaint. That the defendant, with the intent to obtain the ownership in fee of plaintiffs’ real property as described in the complaint, represented to the plaintiffs that the said W. L. Bessolo was the owner of patents covering the manufacture and sale of thirty-eight different kinds of tools, including valuable big rotary tongs; that if the said plaintiffs would deed their real property to the defendant, the defendant would use the real property in question as a factory site for the manufacture of all of said tools, including the manufacture of said valuable big rotary tongs, and that the plaintiffs would participate in a partnership with the said defendant in such manufacture and receive equities in all of said defendant’s patents covering said thirty-eight tools, including the patent covering the said valuable big rotary tongs; that the plaintiffs, believing said representations to be true, and being induced thereby, did, on the thirteenth day of June, 1922, grant and convey to said defendant the property described in the complaint; that said defendant, at the time of making said representations, had no intention of carrying out the same; that the defendant has not, since the thirteenth day of June, 1922, assigned, sold, or transferred to the plaintiffs, or either one of them, any interest whatsoever in any partnership in said valuable big rotary tongs, or the patent therefor; that the plaintiffs have received no consideration whatever on account of the transfer of their said' real estate to the defendant; that plaintiffs have offered to deliver to defendant everything of value received by the defendant, and, further, demanded a reconveyance and possession of the property covered by said deed; that the defendant has refused to reconvey said property to the plaintiffs; that the real estate involved is now, and was at the times mentioned, of the value of $10,000. The prayer of the complaint is for cancellation of the

At the conclusion of the plaintiffs’ case defendant interposed a motion for nonsuit on the following grounds: “Mr. Greer (counsel for defendant) : At this time I should like to make a motion for a nonsuit based on two grounds, first, that no offer has been shown, and, second, that lack of consideration is not a sufficient ground for the cancellation or rescission of a deed of conveyance of real property” (citing a leading case decided in bank in the supreme court of the state of California in 1889, the case of Lawrence v. Gayetty, 78 Cal. 126 [ 12 Am. St. Rep. 29 , 20 Pac. 382 ].) Thereupon, the trial court awarded judgment of nonsuit to the defendant upon the following grounds: First, “that no fraud has been shown; second, that lack of consideration is not sufficient ground for cancellation or rescission of a deed of conveyance of real property.”

The testimony set forth in the transcript shows that at the time of the transactions herein referred to, the plaintiffs were the owners of the premises described in the complaint; that the defendant promised and agreed to assign and deliver to the plaintiffs three equities in the thirty-eight patents owned by him, including the patent of big rotary tongs; that the patent covering the rotary tongs was the one of value; that the value of the equities in said patent was discussed by the defendant and the plaintiffs. The testimony of the defendant as to the value of the patents is as follows: “I told them that the patent was. valued at six million dollars.” The testimony further shows that each equity therein agreed to be transferred by the defendant to the plaintiffs was of the value of $3,000. The testimony of the plaintiffs is to the effect that the defendant told them that the transfer of the equities to be made by them to the defendant would give them an interest in the partnership and entitle them to a participation therein; that they were to have "half the profits of making the tongs. The testimony of the defendant in this particular, by question and answer, is as follows: “ Q. What did you say about participation in the partnership? A. Participation in the partnership, it is in the contract that they had made, that they would have half of the profits on making the tongs. Q. You were very careful to state then at that time that

Upon this appeal the respondent relies simply upon the two grounds upon which the motion for nonsuit was granted, to wit: That no fraud had been shown; and that failure of consideration was not sufficient to support a judgment for cancellation of rescission of a deed of conveyance to

In the case of James v. James, 80 Cal. App. 185 [ 251 Pac. 666 ], this court had before it an action prosecuted to secure the cancellation of a deed on account of the failure of the defendant to comply with certain promises involving certain acts thereafter to be performed. The plaintiff had judgment in the trial court and that judgment was reversed in this court on the principle that under such circumstances the plaintiff was entitled only to damages.

The trial court in the case of Lawrence v. Gayetty, supra, having before it pleadings very similar to the ones in the case at bar, took into consideration only the two grounds upon which rescission was sought, and overlooked entirely the fact that if rescission could not be had, redress might be granted by a court of equity as the justice of the case might require. The opinion from that case which we have quoted shows that the subject of damages was not considered, and in sending the cause back for a new trial, leave was granted to amend the pleadings so as to fully present the question of damages to the trial court. In the case at bar the judgment of the trial court leaves in the possession of the defendant title to $10,000 worth of prop

In the. case of Zellner v. Wassman, 184 Cal. 80 [ 193 Pac. 84 ], where a nonsuit was granted, based upon a contract that could not be enforced, the supreme court, in reversing the judgment of the trial court, thus states the law: “While the contract cannot be enforced either in law or equity, we think that the plaintiff is nevertheless entitled to some relief under the pleadings and evidence offered in support thereof, and that as a consequence, the judgment of nonsuit was erroneous. There being but one form of civil action in this state, a plaintiff may recover if his complaint states any cause of action entitling the plaintiff to any relief at law or in equity. (Hayden v. Collins, 1 Cal. App. 259 [ 81 Pac. 1120 ].) It is not essential that a complaint state a cause of action for the relief which plaintiff •seeks, provided the facts stated show some right of recovery, and a plaintiff cannot be thrown out of court merely because he may have misconceived the form of relief to which he is entitled.” (Citing Walsh v. McKeen, 75 Cal. 519 [ 17 Pac. 673 ] ; Rogers v. Duhart, 97 Cal. 500 [ 32 Pac. 570 ] • Brown v. Anderson Cottonwood Irr. Dist., 183 Cal. 186 [ 190 Pac. 797 ].) Likewise, in Nathan v. Dierssen, 164 Cal. 607 [ 130 Pac. 12 ], in an action for recovery of rents, issues, and profits, where restitution of the premises was not sought, a judgment of restitution wag awarded, the court said: “The complaint contains every allegation necessary in an action of ejectment. It alleges ownership in plaintiff; that defendant wrongfully entered and dispossessed him, and that he still keeps him out of possession. No other averment was required.” (Citing authorities.) “There

In overlooking the question of damages the trial court, in granting a judgment of nonsuit, virtually placed the plaintiffs in a position where they are left absolutely remediless for all the wrongs suffered by them through the failure of the defendant to comply with his agreement. That wrong consists in there being transferred from the plaintiffs to the defendant, real property of the value of $10,000, or thereabouts, without consideration. In considering the evidence in this case, all of which is along the line of excerpts which we have set forth in this opinion, it was the duty of the trial court, upon a motion for nonsuit, to view it in the light of every favorable presumption fairly arising therefrom or inference that might arise therefrom to support the plaintiffs' right to relief. Thus, the testimony showing that property worth $10,000 had been transferred by the plaintiffs to the defendant without consideration being paid therefor, the inference, if not necessarily, at least very fairly, and we may say strongly arises that the plaintiffs have suffered damages in just that sum. The rules in relation to inferences and as to how testimony should be viewed upon a motion for nonsuit is set forth in

Our attention is also called to the fact that the non-suit in this case was granted partly upon grounds not stated in the motion, and the ruling of the court in this particular is presented to us as an additional reason for ordering a new trial herein. The order granting the non-suit was based upon two grounds, as we have stated, to wit: first, that no fraudulent representations were shown; second,that cancellation of a deed could not be had for subsequent failure of consideration. The first ground herein stated was not included in the motion and should not have been considered by the court. In Moore v. Moffatt, 188 Cal. 1 [ 204 Pac. 220 ], in considering the question of granting a motion for nonsuit on grounds not stated, the court held as follows: “It was a defect in the plaintiff’s case which might have been remedied had attention been called to it by the motion for nonsuit, and, inasmuch as it was not made a ground for the motion for a nonsuit, it could not, upon that motion, be considered by the trial court, nor can it, for the same reason, be considered by this court in determining the merits of the motion.” A large number

While agreeing with the trial court that the case of Lawrence v. Gayetty, supra, and the subsequent cases following the same rule, establish the law in this state that rescission of a deed to real estate cannot be had on account of the subsequent failure of the grantee to comply with his agreements, we are nevertheless of the opinion that upon the case-made, as presented by the transcript, the trial court should have followed all of the holding had in the Lawrence-Gayetty case, and directed an amendment of the complaint, and then proceeded to award the plaintiffs the relief to which the evidence showed them to be entitled.

The judgment is reversed, and the trial court is hereby directed to allow the plaintiffs to amend their complaint, if so advised, so as to present all the issues which may be

Hart, J., and Finch, P. J., concurred.