Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
GREENBERG v. DU BAIN REALTY CORPORATION et al.a1
The appeal herein is taken from a judgment rendered by the lower court after sustaining the demurrer to appellant's (Greenberg's) third amended complaint, which demurrer was sustained without leave to amend after appellant had stated to the court that, if sustained, he would request that it be without leave to amend.
The complaint is framed in three causes of action. The first cause seeks rescission of two written contracts for failure of consideration. In paragraph VII it is alleged that on May 14, 1924, two written contracts dated the 8th day of October, 1923, were entered into between the Ambassador Park Syndicate through its agents, Du Bain Realty Corporation and Stoll & Boyd, as first parties, and plaintiff as second party, whereby the first party for a valuable consideration agreed to sell and convey to plaintiff, and plaintiff agreed to buy from first party, two lots in a Los Angeles subdivision; that on October 8, 1923, a receipt was given to plaintiff by the selling agents, which receipt (Exhibit A) recited, among other things: “This sale is subject to selling agents' approval conditions, restrictions, reservations and taxes as set forth in the company's regular printed contract,” and “Verbal Agreements are not binding on Either Party. * * *” Contracts of sale for each lot for the sum of $1,500 each were duly executed, and these are attached as exhibits to the complaint.
By paragraph VIII it is alleged that between October 8, 1923, and October 7, 1931, plaintiff paid, pursuant to said contracts, on lot 368, principal, $1,267.83; interest, $403.15; taxes, $102.97; total $1,773.95; and on lot 373, principal, $1,145.54; interest, $350.10; taxes, $102.97; total, $1,598.61–total for the two lots being $3,372.56.
By paragraph X it is alleged: “That the consideration for entering into said contracts were the agreements, both written and oral, of the defendants Ambassador Park Syndicate, their agents and servants, and more specifically upon the agreements and representations of O. O. Boyd and H. A. Stoll, agents and salesmen for the Du Bain Realty Corp., which corporation in turn was acting for the Ambassador Park Syndicate; that copies of said agreements as set forth in defendants' contracts, prospectus, and newspaper advertisements, are set out and annexed hereto and made a part of this complaint and marked ‘Exhibits A-B-C-E-F-G-H-I-J-K’; that said agreements were that the party of the first part will put in paved streets of rock and oil to a depth of five (5″) inches, cement sidewalks, gutters, curbs, gas, electricity, water, drainage system, electroliers, shade and ornamental trees, free of cost and without assessment of any kind to the said party of the second part, plaintiff herein.”
The plaintiff further alleges that, but for the agreement to put in the improvements as set out in paragraph X, both oral and in writing, plaintiff would not have entered into the agreements aforementioned; that plaintiff entered into said agreements in reliance and in consideration of a full and faithful performance of said condition by the defendants herein within a reasonable amount of time; that plaintiff herein, and more particularly in November, 1931, inspected the said real property, and found same to be in the same condition as in October, 1923, except as to poor and broken curbing, and sidewalks overgrown with weeds; that on or about the first week in November, 1931, plaintiff made demand upon defendants to put in the aforementioned improvements and that the defendants then and there refused, and since then have and still refuse, so to do; that said real property is of no use to plaintiff without the improvements as herein set forth; and that the only improvements that have been put in are gas, water, and electricity; that on the 9th day of February, 1932, plaintiff notified defendants in writing and by personal presentation of his rescission of said agreements of date October 8, 1923.
From the contracts of sale attached to the complaints it appears that the full purchase price was due in May, 1927, four years prior to the notice of rescission. But installments were long past due at the time rescission was attempted. It also appears that each contract contained this stipulation: “It is understood and agreed that the Buyer is of legal age and that the property above described has been inspected by the Buyer or the Buyer's duly authorized agent; that the same is and has been purchased by the said Buyer as a result of said inspection and not upon representation made by said Seller or any selling agent, and said Buyer hereby expressly waives any and all claims for damages by reason of any cancellation or foreclosure of this contract because of any representation made by any selling agent or person whatsoever other than is contained in this contract, and the said Seller shall not be responsible or liable for any inducement, promise, representation, agreement, condition or stipulation not set forth herein.”
As this cause sounds in rescission, the demurrer was properly sustained on at least three grounds–the manifest laches of plaintiff; his admitted default at the time of his attempted rescission; and the stipulation in the contract waiving all representations made by agents not incorporated in the contract. If the demurrer was good on any ground, the order must be sustained. We had occasion to consider the last ground mentioned in the recent case of Clancy v. Becker-Arbuckle-Wright Corp., 29 P.(2d) 868, 869, where we said: “We will first direct our attention to the question of the propriety of the trial court's ruling granting the nonsuit in favor of the respondent owner. The contract entered into by the appellant and the respondent owner contained the following provisions: ‘It is understood that this instrument contains the entire agreement between the parties, and the Buyer agrees that the Seller has not, and that no agent of the Seller has made any representation or promise with respect to, or affecting said property or this contract not expressly contained herein.’ It should be stated that appellant's claim of fraud rests solely upon certain alleged oral promises and representations made by the representatives of the selling agent, none of which alleged promises or representations were contained in the written contract with the owner. In view of the above-mentioned provision of the contract we are of the opinion that appellant may not rely upon said alleged oral promises and representations of the representatives of the selling agent in an action against the owner. Gridley v. Tilson, 202 Cal. 748, 262 P. 322; Speck v. Wylie (Cal. App.) 29 P.(2d) 312; W. J. Latchford Co. v. Southern California Gas Co., 125 Cal. App. 112, 13 P.(2d) 871; Campbell v. Title Guarantee & Trust Co., 121 Cal. App. 374, 9 P.(2d) 264; Warner v. Taft Land & Development Co., 113 Cal. App. 71, 297 P. 969; Munn v. Earle C. Anthony, Inc., 36 Cal. App. 312, 171 P. 1082; Tockstein v. Pacific Kissel Kar Branch, 33 Cal. App. 262, 164 P. 906; Pease v. Fitzgerald, 31 Cal. App. 727, 161 P. 506. The provision in the contract here and the provision under consideration in Campbell v. Title Guarantee & Trust Co., supra, are identical. In an attempt to escape the effect of the foregoing authorities, appellant cites Simmons v. Ratterree Land Co., 217 Cal. 201, 17 P.(2d) 727, and states that the decision in Gridley v. Tilson, supra, has ‘been definitely clarified’ in the later decision. We find these authorities entirely in accord. The Supreme Court said on page 729 of 17 P.(2d) in the Simmons Case: ‘The doctrine of Gridley v. Tilson, supra, would preclude plaintiff from relying on representations of the agents, contrary to the express provisions of the written contract, were it not for additional circumstances which operate in plaintiff's favor.’ The court then proceeded to point out the circumstance that the plaintiff in the Simmons Case was in legal effect coerced into the actual signing of the contract at a late hour in the evening without a full opportunity to consider it, and was compelled under the terms of the contract to permit the seller to retain the buyer's copy. It then distinguished the two cases by saying: ‘In Gridley v. Tilson, supra, the fraud was not in the execution of the contract, but antecedent thereto and in the inducement of the contract.”’
Here it should be noted that the action is not for fraud in the execution of the contract, but is in rescission for failure of consideration; the “failure” being in alleged representations of subagents as to what the principal would do in addition to what he agreed to do in the contract. The soundness of the rule of the cited cases is illustrated here where the oral representations complained of were alleged to have been made more than eight years prior to the filing of the complaint and where the contracts were not executed until seven months after the negotiations had been completed and for a like period after the representations were alleged to have been made.
The second cause of action is in assumpsit for money had and received. It is admittedly based on the same facts which are alleged in the first cause of action. Where such a cause is joined with one containing specific allegations of the identical transaction upon which both causes are based, the nature of the action is to be determined by the specific allegations. Powers v. Freeland, 114 Cal. App. 146, 150, 299 P. 736; Stone v. Superior Court, 214 Cal. 272, 275, 4 P.(2d) 777, 77 A. L. R. 743; Hamberger-Polhemus Co. v. Hind, Rolph & Co., 81 Cal. App. 624, 628, 254 P. 615. We are required to affirm a judgment appealed from unless the entire record discloses that the error complained of has resulted in a miscarriage of justice. Hence, though the ruling on the demurrer to the second cause of action might have been technical error, no injustice has been done, and a reversal would merely add expense and delay to the parties. If the plaintiff was unable in his third amended complaint to plead facts sufficient to constitute a cause of action, it is fair to assume that he would be unable to prove a case in assumpsit.
The third cause of action rests on the same allegations as those found in the first with additional allegations claiming fraud in the oral representations made by certain agents. The theory of this cause of action is that these oral representations entered into and became a part of the contract, thereby imposing on the vendor additional obligations to those stipulated in the contract.
All that is said in reference to the first cause of action is applicable to the third, but, in addition, this pleading is particularly objectionable under the special demurrer. When a cause of action is laid in fraud, a pleader may not rest in generalities and conclusions. Thus it is alleged in paragraph VI that plaintiff entered into the contracts in reliance upon the representations pleaded in paragraph IX of the first cause of action where it is alleged that plaintiff relied upon promises both written and oral and upon statements made in defendants' prospectus and newspaper advertisements, copies of which are attached to the complaint. It is then alleged that the defendants “agreed to put in paved streets of rock and oil to a depth of five inches, cement sidewalks and curbs, gutters, gas, electricity, water, drainage system, electroliers, and ornamental trees, free of cost. * * *” Turning to Exhibits E, F, G, H, and I, we find that the agents represented that the streets would be paved with oil and rock three and one-half to five inches thick. The complaint alleges that the streets were not paved with oil and rock five inches thick. In Exhibit K appears the statement that the paving was to be completed in December, 1923. In paragraph VIII it is alleged that none of the promised improvements was made except the installation of gas, water, and electricity. In paragraph VII it is alleged that plaintiff found poor and broken curbing and sidewalks covered with weeds. There is nothing in any of the written exhibits relating to electroliers and ornamental trees. It cannot be ascertained from the pleading which of the alleged representations were made orally, or by whom, and which were plaintiff's conclusions from the written exhibits.
Plaintiff was given three trials to plead his cause of action with sufficient clearness to enable defendants to meet the issues. The pleadings fail to disclose diligence on his part or excuse for his failure to rescind promptly or to complain of the alleged derelictions of the defendants.
The judgment is affirmed.
NOURSE, Presiding Justice.
We concur: STURTEVANT, J.; SPENCE, J.
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: Civ. 9341.
Decided: August 27, 1934
Court: District Court of Appeal, First District, Division 2, California.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)