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


Civ. 17896.

Decided: October 16, 1950

Larwill & Wolfe, Los Angeles, for appellants. C. Paul Du Bois, Los Angeles, for respondent.

From a judgment sustaining a general demurrer to plaintiffs' third amended complaint in an action to rescind a conditional sales contract for a truck, plaintiffs appeal.

Facts: In the first count of the complaint plaintiffs alleged that they entered into a conditional sales contract with defendant to purchase a truck and trailer; that defendant for the purpose of deceiving, defrauding and inducing them to enter into the contract made certain specific representations which were in fact untrue, and which defendant knew to be untrue. They also alleged that defendant has received back everything that he gave under the terms of the contract.

Plaintiffs pray that the conditional sales contract be declared void and for a return of the consideration paid by them.

Question: Was the demurrer to the complaint properly sustained?

This question must be answered in the negative. The facts alleged as set forth above, if sustained by proof, constituted a cause of action against defendant. (Philpott v. Superior Court, 1 Cal.2d 512, 523 et seq., 36 P.2d 635, 95 A.L.R. 990.) It is true that in plaintiffs' original complaint and the first amendment thereto plaintiffs attempted to allege a cause of action relying upon the contract and suing for damages for breach thereof, while in the second amended complaint they sought damages predicated upon the fraud perpetrated on them by defendant. In the third amended complaint, which is now before this court, they seek a rescission. Hence defendant argues that there was an election of remedies in the original complaint and the first and second amendments thereto which is inconsistent with the relief plaintiffs now seek, and that therefore plaintiffs are now estopped to seek a different relief, to wit, a rescission.

The doctrine of election of remedies is not applicable in the instant case for the reason that defendant has failed to show that he has suffered any detriment or disadvantage due to the fact that plaintiffs have sought a different relief in their third amended complaint. Such a showing is essential to make applicable the doctrine of election of remedies. (Mansfield v. Pickwick Stages, 191 Cal. 129, 131, 215 P. 389.) This was not done in the present case.

The second count in the complaint alleged a cause of action for a violation of sections 2981 and 2982 of the Civil Code. (See also Carter v. Seaboard Finance Co., 33 Cal.2d 564, 572 et seq., 203 P.2d 758.)

The third count was a common count. Each of the counts in the complaint was valid as against a general demurrer and defendant has failed to show wherein any of his grounds for special demurrer were well taken.

The trial court erred in sustaining the demurrer to the third amended complaint and the judgment is reversed with direction to the trial court to overrule the demurrer and permit defendant to file an answer within fifteen days after the remittitur is filed in the office of the clerk of the superior court of Los Angeles county.

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.

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