Kett v. Graeser

Summary judgment was granted in favor of defendants Graeser and Dixon Realty Company. Plaintiffs appeal. Appellants bought a home which, they say in their complaint and affidavit in opposition to motion for summary judgment, needed certain repairs. These were repairs to: a leaking shower, splits in the cement driveway, split bricks in the fireplace, and split kitchen walls. Appellants allege that respondents represented to them that if they would purchase the dwelling, the repairs would be made by a licensed contractor. Appellants allege that they were induced to buy because of the promise. They allege that when respondents made the promise, they did not intend to perform it. They allege that the repairs were demanded of respondents and that each respondent said these were the obligation of other defendants. Appellants allege actual damages in amount $3,000 and demand exemplary damages.

Respondent Graeser’s affidavit refers to a deposit receipt, which is an exhibit attached to the affidavit, and particularly to paragraph 6 of the receipt, in which there is this sentence: 11 This agreement contains the entire agreement and all representations not herein set forth are deemed waived. ’' Although all of the allegations of the complaint are denied by the answer, Graeser does not deny in his declaration that he made the alleged representation.

The deposit receipt says nothing about repairs. Besides price and terms of payment, and description of the property,

The granting of summary judgment was based on the judge’s conclusion, as he states in the order, that false promises which are unenforceable under the statute of frauds or ineffective under the parol evidence rule as contradictory to a written contract, cannot form the basis of an action for fraud.

Statute of Frauds

The action is not based on a contract which is required to be in writing by the statute of frauds. It is not an action to enforce a contract for sale of real property, nor an action for damages for breach of such contract. The property has been sold and paid for. The action-is in tort based on alleged collateral oral promise made to induce appellants to buy, and made without intention to perform, a promissory fraud. This kind of fraud is specifically recognized in our law. (Civ. Code, § 1572, subd. 4.) If respondents made the promise, intending at the time to perform it, appellants have no case, for the contemporary lack of intent to perform is an essential element of the kind of wrong which is pleaded. (Church of Merciful Saviour v. Volunteers of America, 184 Cal.App.2d 851 , 859, 860 [ 8 Cal.Rptr. 48 ].) This requirement is very different from that which exists in a case where one sues on a promise contained in the contract. There, he need only prove that the promise ivas made and was broken. The contract itself, then, is not sued upon. The statute of frauds does not apply.

The case of Kroger v. Baur, 46 Cal.App.2d 801 [ 117 P.2d 50 ], relied upon by respondents, is quite different from the one before us. In that case, the entire alleged contract, one for the payment of a real estate broker’s commission, was oral. The statute of frauds specifically requires such contract, or some note or memorandum thereof, to be in writing and subscribed by the party charged or by his agent. (Civ. Code, § 1624, subd. 5; Code Civ. Proc., § 1973, subd. 5.) The broker could not avoid the statute of frauds by simply alleging that the oral promise to pay him a commission was made without any intention of performing it. In the ease before us, the contract of sale of real property was not only in writing but was actually performed by deed to appellants. The damages-demanded by appellants are, as said above, based on an alleged

Parol Evidence Buie

The parol evidence rule is a principle of substantive law. (Ellis v. Klaff, 96 Cal.App.2d 471 , 476 [ 216 P.2d 15 ].) Therefore, if the parol evidence rule would preclude any possibility of recovery by plaintiffs, summary judgment against them might be sustained on the ground that the action has no merit. (Code Civ. Proc., §437c.) Respondents contend that the “merger" clause in paragraph 6 of the deposit receipt makes it impossible for appellants to succeed. But this is not the rule where there is fraud, as appellants allege there was. The principles, as stated in Herzog v. Capital Co., 27 Cal.2d 349 , 353 [ 164 P.2d 8 ], are these: (1) The merger, or exculpatory, clause does not preclude the defrauded purchaser from rescinding and recovering the consideration from even an innocent seller. (2) But the clause will relieve an honest seller from liability for damages from fraudulent representations of his agent. (3) But the immunity in principle No. (2) does not exempt the principal from liability for his own conduct. In the case before us, the misrepresentations are alleged to be those of the principals. The clause does not in itself operate to protect respondents from liability. (Herzog v. Capital Co., supra, p. 353; Buist v. C. Dudley DeVelbiss Corp., 182 Cal.App.2d 325 , 331 [ 6 Cal.Rptr. 259 ]; Vogelsang v. Wolpert, 227 Cal.App.2d 102 , 122-123 [ 38 Cal.Rptr. 440 ].) In the Herzog and Buist cases, the fraud was that of concealment. But in Vogelsang, the rule was applied to promissory fraud.

In the last paragraph, however, nothing more is settled than the negative proposition that the merger, or exculpatory, clause does not by itself exclude parol evidence of fraud by the principal in an action for damages against him. The parol evidence rule itself, however, would prevent appellants from presenting parol evidence which would vary the terms of an integrated written agreement, that is, one which by its terms purports to express the entire agreement between the parties. If it were not so, one party to a written contract could change its terms, adding to the promises made by the other party, by the device of bringing his action in tort rather than on contract, and alleging an inducing promise made without intention of performance. As was said by Mr. Justice Dooling in Dillon v. Sumner, 153 Cal.App.2d 639 , 643 [ 315

The case of Cobbs v. Cobbs, 53 Cal.App.2d 780 [ 128 P.2d 373 ], cited by respondents, is very different from the one before us. In the Cobbs ease, attempt was made to overcome a written agreement by oral evidence which was not only directly contrary to the provisions of the writing but also related to the one point which was particularly in dispute by the parties when they were negotiating the terms of the agreement.

We proceed to apply the above principles to the case before us. The written contract was one for the sale of real property, not for repairs. No repairs whatever are mentioned in it. If some repairs had been mentioned, it is likely that evidence of others orally promised for the same total consideration would

Summary judgment reversed.

Draper, P. J., and Salsman, J., concurred.