EATWELL v. BECK

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

EATWELL et al. v. BECK et al.*

Civ. 19032.

Decided: December 16, 1952

Emmett E. Patten, Glen A. Duke, Monrovia, for appellants. W. T. Stockman and Victor Bewley, Los Angeles, for respondents.

This is an appeal from the judgment following the granting of a motion for a nonsuit.

The action is entitled ‘Complaint for fraud and deceit’. In substance the complaint alleges misrepresentation by defendants relating to the sale to plaintiffs of a motel for the sum of $43,000. Plaintiffs paid $7,000 cash and the balance was to be paid in installments. The alleged fraud refers to the monthly income which, it is alleged, was misrepresented.

The answer is a general and special denial. The defendants Thomas allege laches on the part of plaintiff.

As recited in appellants' brief, ‘After plaintiffs' evidence was introduced, defendants moved for nonsuit; plaintiffs moved to reopen the case to amend the complaint and for leave to submit evidence to complete proof. Plaintiffs' motion was denied and the nonsuit was granted by the court.’

It is contended on appeal ‘That there is sufficient evidence to entitle appellant to have the case submitted to the trier of facts; that therefore the granting of the judgment of nonsuit is error.

‘That the trial court abused its discretion when it refused to permit plaintiffs to reopen their case, amend the complaint and supply the deficiency in their proof; as the granting of the nonsuit will bar plaintiff from further action to obtain the relief to which they are entitled.’

The record supports both of appellants contentions. It would serve no useful purpose to quote from the many decisions on the subject of nonsuits. Nor is it necessary to recite in detail any of the evidence submitted by plaintiff. It is sufficient to note, in the light of the law governing such situations, that plaintiff established a prima facie case. The motion for a nonsuit therefore should have been denied.

‘That the trial court abused its discretion when it refused to permit plaintiffs to reopen their case, amend the complaint and supply the deficiency in their proof; as the granting of the nonsuit will bar plaintiffs from further action to obtain the relief to which they are entitled’ there can be no question. The issue was purely technical and the administration of justice, as such, supports appellants' contention in this regard.

The judgment is reversed and cause remanded.

DORAN, Justice.

WHITE, P. J., and DRAPEAU, J., concur.