Reset A A Font size: Print

District Court of Appeal, Second District, Division 2, California.

J. Ray FREEBAIRN, Plaintiff and Appellant, v. Raymond L. HEFFERAN, Defendant and Respondent.

Civ. 16654.

Decided: July 01, 1949

W. I. Gilbert, Jr., Los Angeles, for appellant. Boller, Suttner & Boller, Arcadia, for respondent.

This is an action for foreclosure of the chattel mortgage which was given in part payment of the purchase price of the cafe referred to in Hefferan v. Freebairn, Cal.App., 207 P.2d 602. Judgment was rendered in favor of defendant cancelling the note and mortgage. Plaintiff appeals.

This action was consolidated for the purposes of trial with that of Hefferan v. Freebairn. Defendant contends that even though he might not be entitled to rescission, as the alleged defrauded party he is entitled to set up the same fraudulent representations as a defense to the foreclosure as were alleged as grounds for rescission. Defendant did so plead in the instant action but in our opinion in the rescission case we have determined adversely to the contentions of plaintiff in that action, defendant herein. The same reasoning is applicable to both actions.

Judgment reversed.

WILSON, Justice.

MOORE, P. J., and McCOMB, J., concur.