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District Court of Appeal, First District, Division 1, California.

Robert L. WILSON, Plaintiff and Respondent, v. STANDARD ENGINEERING CORPORATION, a Corporation, Leibert & Caletti, a Copartnership, Jack Leibert, Carlo Caletti, Elmer Asbell, First Doe, Second Doe, Third Doe, Black White Company, a corporation, Defendants and Appellants.

Civ. 13771.

Decided: November 17, 1948

Melvin, Faulkner, Sheehan & Wiseman, of San Francisco, for appellants. Phillip A. Kennedy of San Rafael, and Leonard J. Bloom, of San Francisco, for respondents Rutherword and Wilson. Price & Morony, of Chico, for respondents Evans and Sauvage.

In form the complaint herein follows the original allegations of Rutherford v. Standard Engineering Corporation, Cal.App., 199 P.2d 354, with variations as to territory, dates and amounts. The same deletions made in the Rutherford case were not requested in the Wilson case. Plaintiff Wilson permitted the complaint to stand with the single change of striking out the allegation that a bank had agreed to finance the erection of the houses ‘at * * * $7.50 per square foot.’ This allegation was deleted. The same basic tort—misrepresentation—and the same breach of warranty are alleged. The evidentiary matter is similar and the instructions identical. Although defendants' motion for a new trial was denied, the trial court found it necessary to reduce the $18,000 verdict by $2,700. The main prejudicial errors set forth in the Rutherford case are applicable herein.

The judgment is reversed.

WARD, Justice.

PETERS, P. J., and BRAY, J., concur. Hearing denied; CARTER and TRAYNOR, JJ., dissenting.